11 2 3 IPPERWASH PUBLIC INQUIRY 4 5 6 7 ******************** 8 9 10 BEFORE: THE HONOURABLE JUSTICE SIDNEY LINDEN, 11 COMMISSIONER 12 13 14 15 16 Held at: Forest Community Centre 17 Kimball Hall 18 Forest, Ontario 19 20 21 ******************** 22 23 24 September 14th, 2005 25
21 Appearances 2 Derry Millar ) Commission Counsel 3 Susan Vella ) 4 Donald Worme, Q. C ) (np) 5 Katherine Hensel ) 6 Megan Ferrier ) (np) 7 Murray Klippenstein ) (np) The Estate of Dudley 8 Vilko Zbogar ) (np) George and George 9 Andrew Orkin ) (np) Family Group 10 Basil Alexander ) 11 12 Peter Rosenthal ) Aazhoodena and George 13 Jackie Esmonde ) Family Group 14 15 Anthony Ross ) (np) Residents of 16 Cameron Neil ) (np) Aazhoodena (Army Camp) 17 Kevin Scullion ) 18 William Henderson ) Kettle Point & Stony 19 Jonathon George ) (np) Point First Nation 20 Colleen Johnson ) (np) 21 22 Kim Twohig ) Government of Ontario 23 Walter Myrka ) (np) 24 Susan Freeborn ) (np) 25 Michelle Pong ) (np)
31 APPEARANCES (cont'd) 2 Janet Clermont ) Municipality of 3 David Nash ) (np) Lambton Shores 4 5 Peter Downard ) The Honourable Michael 6 Bill Hourigan ) (np) Harris 7 Jennifer McAleer ) 8 9 Ian Smith ) (np) Robert Runciman 10 Alice Mrozek ) (np) 11 Harvey Stosberg ) (np) Charles Harnick 12 Jacqueline Horvat ) 13 Douglas Sulman, Q.C. ) Marcel Beaubien 14 Dave Jacklin ) (np) 15 Trevor Hinnegan ) (np) 16 17 Mark Sandler ) (np) Ontario Provincial 18 Andrea Tuck-Jackson ) Ontario Provincial Police 19 Leslie Kaufman ) (np) 20 Ian Roland ) Ontario Provincial 21 Karen Jones ) (np) Police Association & 22 Debra Newell ) (np) K. Deane 23 Ian McGilp ) (np) 24 Annie Leeks ) (np) 25 Jennifer Gleitman ) (np)
41 APPEARANCES (cont'd) 2 Julian Falconer ) (np) Aboriginal Legal 3 Brian Eyolfson ) Services of Toronto 4 Kimberly Murray ) (np) 5 Julian Roy ) 6 Clem Nabigon ) (np) 7 Adriel Weaver ) (np) Student-at-Law 8 9 Al J.C. O'Marra ) (np) Office of the Chief 10 Robert Ash, Q.C. ) (np) Coroner 11 12 William Horton ) Chiefs of Ontario 13 Matthew Horner ) 14 Kathleen Lickers ) (np) 15 16 Mark Fredrick ) (np) Christopher Hodgson 17 Craig Mills ) (np) 18 Megan Mackey ) (np) 19 Erin Tully ) 20 21 David Roebuck ) (np) Debbie Hutton 22 Anna Perschy ) 23 Melissa Panjer ) 24 Danya Cohen-Nehemia ) (np) 25
51 TABLE OF CONTENTS 2 PAGE NO. 3 List of Exhibits 6 4 5 JULIE RAMONA JAI, Resumed 6 Cross-Examination by Mr. Peter Rosenthal 7 7 Cross-Examination by Mr. Kevin Scullion 145 8 Cross-Examination by Mr. William Henderson 162 9 Cross-Examination by Mr. William Horton 181 10 Cross-Examination by Mr. Julian Roy 204 11 12 13 14 Certificate of Transcript 343 15 16 17 18 19 20 21 22 23 24 25
61 EXHIBITS 2 No. Description Page 3 P-709 Document Number 1010501. ONAS briefing 4 note for Hon. Charles Harnick, Minister 5 responsible for native affairs, and 6 appendix, Sept. 06/'95. 52 7 P-710 Document Number 1011922. Julie Jai's 8 handwritten notes, Sept. 14/'95. 144 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
71 --- Upon commencing at 9:02 a.m. 2 3 THE REGISTRAR: This Public Inquiry is 4 now in session, the Honourable Mr. Justice Linden 5 presiding. Please be seated. 6 COMMISSIONER SIDNEY LINDEN: Good 7 morning. 8 MR. PETER ROSENTHAL: Good morning, 9 Commissioner. 10 COMMISSIONER SIDNEY LINDEN: Good 11 morning, Mr. Rosenthal. You are ready to go? 12 MR. PETER ROSENTHAL: Okay. I'm ready to 13 go too. 14 15 JULIE RAMONA JAI, Resumed; 16 17 CROSS-EXAMINATION BY MR. PETER ROSENTHAL: 18 Q: Good morning, Ms. Jai. 19 A: Good morning. 20 Q: I hope you're ready to go too. 21 A: I am. 22 Q: And I'm very sympathetic to your back 23 problems. I've had back problems myself so, if there's 24 anytime that you want a break or you want to change your 25 position or anything, please don't hesitate to do so.
81 A: Well, I'll probably stand unless 2 you're going to be using a lot of binders which I find 3 difficult to juggle up there. 4 Q: Right. 5 A: Do you think -- 6 Q: I'll be referring a little bit to 7 some the materials but Mr. Millar's going to put most of 8 them on the screen in any event -- 9 A: Okay. 10 Q: -- so you might be able to just see 11 it from there. 12 A: Okay. I think I'll stand. 13 Q: So, if you're more comfortable 14 standing, please do. 15 I'm one of the counsel to a group of 16 Stoney Point people who go under the name Aazhoodena and 17 George Family Group at this proceeding. I want to deal 18 with several areas if I may. 19 We've heard evidence that the occupation 20 of the Army Camp and also of the Park afterward was by a 21 group of Stoney Point people but it wasn't supported by 22 the Kettle and Stoney Point Band Council and you were 23 aware of that fact? 24 A: Yes. 25 Q: I would suggest to you that's not
91 necessarily so unusual. There are many situations where 2 there's a group of activists who do something and it's 3 not supported by the formal authorities. 4 Is that fair to say? 5 A: There are many situation in which 6 there are different views within First Nations, yes. 7 Q: Yes. And in particular in First 8 Nations occupations and blockades and so on, it's not 9 uncommon that there would be a group of activists that's 10 not supported necessarily by the formal Band structure, 11 right? 12 A: Yes. 13 Q: And the fact that they're not 14 supported by the formal Band structure it doesn't mean 15 that your committee would still not try to deal with the 16 problem in a peaceful way and so on, right? 17 A: Right. 18 Q: Now, the meetings of the 19 Interministerial Committee that we've of heard of several 20 such that you chaired, I gather that they began with sort 21 of a go-around where people would say who they are and 22 who they represent; is that correct? 23 A: Yes. 24 Q: And do you recall at the meetings 25 that she attended, how Ms. Hutton would have introduced
101 herself? 2 A: I can't recall other than identifying 3 herself as being from the Premier's office. But, I don't 4 recall the exact words she used or whether she said that 5 she was the Executive Assistant or not. I don't 6 remember. 7 Q: I see. Yeah. Now, Mr. Hutchison 8 testified that, to his recollection of the September 6th 9 meeting which is the one that he attended, Inspector Fox 10 identified himself, describing himself as the OPP liaison 11 and that he was an OPP officer or something to that 12 affect. 13 Does that accord with your recollection? 14 A: Sometimes he would identify himself 15 as Solicitor General and sometimes as the OPP liaison 16 officer. 17 Q: And would he use sometimes both, in 18 fact? 19 A: I think that he was in both 20 capacities. I don't know -- 21 Q: Yes. 22 A: -- so I don't know which of those 23 descriptions he used at that meeting. 24 Q: Well, we understand that, in fact, he 25 was the liaison person between the OPP and the Solicitor
111 General's office -- 2 A: Yes, he was. 3 Q: -- but he was also the Solicitor 4 General's office expert on, or assistant on Aboriginal 5 matters? 6 A: Yes. 7 Q: So he wore those -- 8 A: Yes. 9 Q: -- combined hats. 10 A: Yes. 11 Q: But you wouldn't dispute Mr. 12 Hutchison's description that -- that he, at the September 13 6th meeting at least, indicated that he had a liaison 14 role? 15 A: No, I wouldn't dispute that. 16 Q: And then if we could please look at 17 your Tab 9, but -- but perhaps if -- perhaps you don't 18 have to sit down and look at if Mr. Millar will -- 19 A: No, I can easily manage one (1) 20 binder, sometimes even two (2) up here. It's when we get 21 to three (3) that it's difficult. 22 Q: Okay. Well, perhaps we could do them 23 one (1) at a time then. And Mr. Millar has projected it 24 on the screen. 25 COMMISSIONER SIDNEY LINDEN: Did you have
121 an observation or an objection? 2 MR. PETER DOWNARD: Just a point of 3 clarity as to what Scott Hutchison said on -- on the 4 point, his evidence that was summarized and put to the 5 Witness. 6 The accurate summary is that he was asked 7 whether Inspector -- whether he was aware on September 8 6th that Inspector Fox was an OPP officer. He said he 9 might have known it before but -- he knew that. 10 He would have known that by the time 11 people were -- people went around and did their 12 introductions, but he did not know if Inspector Fox was 13 introduced as OPP. He -- he thought that he simply 14 described himself as OPP liaison. 15 MR. PETER ROSENTHAL: Well, perhaps we 16 should read it from the transcript exactly what Inspector 17 Fox -- what Mr. Hutchison said. 18 MR. PETER DOWNARD: Sure, it's at page 19 190. 20 MR. PETER ROSENTHAL: I have it on 21 another transcript. Do you have another copy of the 22 paper? 23 Yes, it was on page 190, that's correct. 24 "You are aware that he is a police 25 officer of the OPP?
131 A: Yes. 2 Q: And I take it you were aware of 3 that on September 6th, 1995? 4 A: I was. 5 Q: And you became aware of that in 6 the course of the meeting you attended 7 or you were aware of that before hand? 8 A: I might have known him before 9 hand. I certainly would have known by 10 the time people went around and did 11 their introductions who he was and why 12 he was there." 13 And then continuing on page 191: 14 "Oh, I see, so as you recall when he 15 introduced himself he made it clear 16 that he was a member of the OPP? 17 I don't know if he would have -- 18 specifically that, I certainly would 19 have taken from the introduction that 20 he's -- I think he simply described 21 himself as the OPP liaison." 22 Which I took to mean that he was an OPP 23 officer. I don't think there was any mystery about it 24 and I certainly took it to be that. 25 And what I put to this Witness is that he
141 describing himself as the OPP liaison and that's what Mr. 2 Hutchison said and I asked her if her memory accorded 3 with that and she said she wouldn't dispute it. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 Let's move on. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Now, dealing with this document, if 9 we could turn, please, to page 4 of the appendix first. 10 I'm going to be flipping back and forth a little bit, Mr. 11 Millar, in this document. It's the last page of the 12 document. Thank you, yes. 13 A: Yes. 14 Q: Now, this appendix, as you're aware 15 and I should make sure we're all aware is entitled, 16 Guidelines for Responding to Aboriginal Emergencies 17 (Blockades)? 18 A: Yes. 19 Q: And I'm starting at the back, but 20 I'll refer to some other parts as well. 21 I wanted to discuss two (2) of the 22 considerations that are listed there under, 23 "Considerations" and these are said to be the factors to 24 consider in addressing seriousness of confrontation and 25 political responses.
151 And number 1 is degree of public 2 disruption and economic significance of stoppage. 3 And I wanted to suggest to you that in 4 this case as compared to most cases of blockades, 5 occupations the degree of public disruption and the 6 economic significance of the stoppage were very, very 7 minimal given the fact that the Park was closed for the 8 season and it wasn't interfering with any other economic 9 enterprise and so on. 10 Isn't that fair to say? 11 A: Yes, I agree. 12 Q: As opposed to there are many 13 occupations where, for example, a public roadway is 14 blocked and it really disrupts the local economy, 15 correct? 16 A: Correct. 17 Q: And if that were the situation it 18 would require a more urgent response in general than a 19 situation where there isn't any significant economic 20 disruption, right? 21 A: Right. 22 Q: Now, number 4, under, 23 "Considerations," is what means are being used by the 24 First Nation or Aboriginal group involved. And I gather 25 that that might include, for example, if there was
161 anything dangerous or aggressive being done by the 2 group -- 3 A: Yes. 4 Q: -- is that right? 5 A: Yes. 6 Q: As opposed to just a quiet occupation 7 of a Park that's not being used by anyone, that would be 8 a very mild means, compared to some possibilities, right? 9 A: That's correct. 10 Q: So, in general, I would suggest and I 11 would ask if you agree that in this case, it was a rather 12 calm and not very disruptive situation compared to the 13 range of possibilities and therefore that would have 14 meant the -- in your view, meaning the collective view as 15 the Committee or you personally, that this was something 16 that didn't require the same kind of urgent, immediate 17 action as some other situations might? 18 A: I agree that that was my view and the 19 view of many members of the Committee. 20 Q: Yes, and not -- not all, evidently as 21 we -- as we've heard, yes. Thank you. 22 Now, if you could turn back a bit in that 23 document, to the second page of the document. 24 A: Is this the second page of the 25 appendix?
171 Q: Sorry, yes, the second page of the 2 appendix, yes. Mr. Millar now has it up there as well, 3 but if you have in it front of you that's probably easier 4 for you. 5 Paragraph 10 of this document states the 6 objectives of the Committee and number A is: 7 "Guide provincial reaction to any 8 Aboriginal blockade. 9 So, that was one of the objectives -- 10 A: Yes. 11 Q: -- of the Committee to formulate the 12 overall provincial reaction? 13 A: Yes. 14 Q: And the word 'blockade' is used 15 throughout here, it means to include an occupation as 16 well; is that right?? 17 A: Right, it just means -- it's a short 18 form for any Aboriginal emergency. 19 Q: For any sort of activist -- 20 A: Right. 21 Q: -- kind of action by Aboriginal 22 people? 23 A: Right. 24 Q: And sub-paragraph D of paragraph 10 25 says that the objectives -- one of the objectives of the
181 Committee is to negotiate removal of any blockade. 2 A: Yes. 3 Q: So the Committee was to try to 4 negotiate an end to the situation? 5 A: Yes. 6 Q: Now, among the powers that the 7 Committee had, according to paragraph 11 were, B, to 8 agree to a negotiating agenda with all parties; is that 9 correct? 10 I'm looking at paragraph 11(B). 11 A: Yes. 12 Q: And also 11(D) to appoint a 13 facilitator/negotiator. 14 A: Yes. 15 Q: Now, there's been some discussion, I 16 believe, in your testimony and others, about two (2) 17 different kinds of negotiations. We might call them, 18 say, substantive negotiations -- 19 A: Yes. 20 Q: -- and process negotiations. 21 A: Right. 22 Q: Is that a convenient description? 23 A: That's a good way of summarizing it. 24 Q: And the substantive -- by substantive 25 negotiations, we would mean dealing with the land claim
191 in a situation like this, right? Things -- things like 2 that? 3 A: That would be one example of a 4 substantive matter. 5 Q: Yes. 6 A: Another -- another example would be 7 dealing with the actual allegation that there was a 8 burial ground; that would also be a substantive matter. 9 Q: Yes. And some substantive 10 negotiations in Aboriginal matters take years and even 11 generations -- 12 A: Yes. 13 Q: -- to deal with; isn't that right? 14 A: Yes. 15 Q: Land claims proceedings are 16 unfortunately, apparently, extremely protracted in many 17 cases and -- 18 A: Yes. 19 Q: -- go on for years and years. 20 A: It could be very time consuming. 21 Q: I'm sorry? 22 A: They can be very time consuming. 23 Q: Yes. But the process negotiations 24 means negotiations to deal with the immediate situation? 25 A: Yes.
201 Q: And one of the aspects of that is 2 often to help to set in place a process that will deal 3 with the substantive issues -- 4 A: Yes. 5 Q: So, that the people doing the action 6 feel that at least they haven't got the problem solved, 7 but they have a possible solution in the future? 8 A: Correct. 9 Q: Now, we've heard there from you and 10 others as to what happened at the meetings of September 11 5th and September 6th, and is it fair to say that the 12 insistence by the Premier's office represented by Ms. 13 Hutton, that they want them out within a day or two (2)-- 14 A: Hmm hmm. 15 Q: -- and all the discussion about the 16 OPP should just go and do it now, precluded the 17 possibility the Committee doing what it really could have 18 and should have done of considering how can we deal with 19 the immediate situation in a more relaxed way, can we 20 appoint a facilitator negotiator, and so on. 21 COMMISSIONER SIDNEY LINDEN: Just a 22 minute, Mr. Rosenthal, Ms. Perschy's on her feet. 23 Yes, Ms. Perschy...? 24 MS. ANNA PERSCHY: Yes, Commissioner, if 25 My Friend is going to refer to comments made by Ms.
211 Hutton, we have contemporaneous notes. This Witness has 2 spoken to her recollection as to those notes. He should 3 refer to those -- either the notes or the specific 4 statements themselves rather than characterizing them the 5 way he does or he has in a way that, frankly, I view as 6 not accurate of what this Witness has said those comments 7 were. 8 COMMISSIONER SIDNEY LINDEN: Well -- 9 MR. PETER ROSENTHAL: Well, in my 10 respectful submission it was accurate, Mr. Commissioner, 11 but perhaps I can obviate the need for dealing with that 12 question by just asking the Witness to -- 13 COMMISSIONER SIDNEY LINDEN: Just a 14 minute please. 15 MR. PETER ROSENTHAL: Oh I'm sorry. I 16 have to deal with another matter. 17 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 18 Twohig...? 19 MS. KIM TWOHIG: Yes, I just wanted to 20 ask My Friend to perhaps rephrase his question. I was 21 concerned about him saying what the Committee could and 22 should have done because the word 'should' suggests that 23 perhaps the Committee did something that it was not 24 authorized to do or that was improper and I don't think 25 that has been the evidence so far.
221 COMMISSIONER SIDNEY LINDEN: Just back up 2 and see if you can ask the question again. 3 MR. PETER ROSENTHAL: Yes, I'm sure I 4 can. I didn't expect it to be parsed quite so finely. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Perhaps I'll just ask you an open 8 ended question. 9 A: Actually I'm just going to move to 10 the seated position okay? 11 Q: Certainly. Certainly. No please at 12 any moment whatever is most comfortable. 13 A: Okay. It's just -- it's just the 14 projector light is shining in my eyes when I'm standing 15 up so -- 16 Q: Sorry, the light? 17 A: The light from the projector. 18 Q: Oh, oh, from this projector. 19 A: Yeah. So, it's better when I'm in a 20 seated position. 21 Q: Okay. I can also try perhaps not to 22 -- not to require the projector too much if that would 23 assist you. 24 A: That would help. 25 Q: If the projector is off, are you more
231 comfortable standing? 2 A: Oh much, yeah. 3 Q: Okay, then we'll turn it off. 4 A: Okay. 5 Q: Please, any request like that, just 6 let me know and we'll certainly cover it. 7 A: I didn't know if other people were 8 looking at the projector. 9 Q: Yes. But maybe we'll -- we'll sort 10 of oscillate between the two and we'll ask you to move 11 out of the way. 12 A: Okay. Sorry. 13 Q: Thank you. We've -- we've looked at 14 the guidelines that suggested that one of the 15 possibilities for this committee is to appoint a 16 facilitator/negotiator, right? 17 A: Right. 18 Q: And such a person then would enter 19 into the process of negotiations I gather. 20 A: Right. 21 Q: And would maybe discuss the 22 substantive issues a bit but would not be able to resolve 23 any of those. And the most that such person could do with 24 respect to substantive issues would be to help to 25 initiate a process that would lead to a resolution of
241 those issues, right? 2 A: Correct. 3 Q: But there would be very important 4 things that could be done immediately by a facilitator 5 negotiator. 6 A: Yes. 7 Q: And I want to look at what might have 8 been done in this case as we proceed. But then the 9 question I had asked you, but I'll phrase it -- try to 10 accommodate My Friends' objections is, it appears that on 11 September 5th and September 6th, the Committee never got 12 around to being able to even consider the question of a 13 facilitator/negotiator; is that fair? 14 A: I would say that there were two (2) 15 or three (3) reasons why we were not able to appoint a 16 facilitator/negotiator. 17 Q: Okay. And what are those reasons in 18 your view? 19 A: One of them was the -- the sense from 20 the impression that we got from Deb Hutton that the 21 Premier wanted very immediate action and wanted the 22 occupiers removed within a day or two (2). 23 Q: Right. 24 A: So, that was one reason that made it 25 difficult. The second reason was that we were told that
251 -- again that the Premier's office or the Government of 2 the day, did not want this viewed as an Aboriginal issue. 3 So, they didn't want to appoint for example, someone from 4 ONAS because that would bring it into sort of "land 5 claims" or all of those kinds of issues. 6 And given that the desire was to treat 7 this like any other illegal occupation as opposed to 8 treat it as an illegal occupation by Aboriginal people. 9 Q: Yes. 10 A: The decision was to have the OPP on 11 the ground be the negotiator facilitator. And then we 12 had a lot of confidence in John Carson as the OPP person 13 on the ground, so we were hopeful that he would be able 14 to fulfill this role. 15 And there was a meeting that -- that had 16 been tentatively set up, I think, for noon on September 17 the 6th that John Carson was going to attend. So, we 18 thought that that would be an opportunity to at least 19 find out from that meeting, you know, who the 20 spokespeople or person from the occupying group was and 21 what their concerns were. So, we thought that that was 22 providing an -- an entry point for dialogue in any event. 23 So, given the various pressures on the 24 Committee and the fact that John Carson already had this 25 meeting set up, we -- that seemed to be the most
261 practical way of beginning the dialogue. 2 Q: Right, given the pressures? 3 A: Yes. 4 Q: And I'd like to explore a little bit 5 more of the two (2) pressures that you mentioned. 6 With respect to the demand for immediate 7 action, twenty-four (24) to forty-eight (48) hours or 8 whatever, even the process negotiations would generally 9 take much longer than that; isn't that fair to say? 10 A: Yes. Usually, I mean, a few days. 11 Q: At least a few days for even basic 12 process negotiations to -- to resolve the immediate 13 blockade or occupation? 14 A: Usually, unless you were just 15 incredibly successful. 16 Q: Yes, yes, but -- and then -- 17 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 18 Downard...? 19 MR. PETER DOWNARD: I'm -- I'm just -- 20 I'm just concerned, I don't attribute any bad faith in My 21 Friend at all -- 22 MR. PETER ROSENTHAL: Thank you. 23 MR. PETER DOWNARD: -- but he's 24 characterizing statements made at the meeting or the -- 25 what are said to have been the views of the Premier in a
271 pretty rough-and-ready way. 2 For example, he refers to it as a demand 3 for immediate action. I've never heard that before. 4 I've never seen any evidence about a demand for immediate 5 action before. 6 There undoubtedly was a view that the 7 occupation should be brought to an end as soon as 8 possible. We've seen ample evidence, but I prefer that 9 if My Friend is going to describe these matters that he 10 do so accurately. 11 MR. PETER ROSENTHAL: I did, 12 specifically, refer then to twenty-four (24) to forty- 13 eight (48) hours. 14 COMMISSIONER SIDNEY LINDEN: Twenty-four 15 (24) to forty-eight (48) hours has been -- 16 MR. PETER ROSENTHAL: And that -- we 17 certainly have evidence of that. And frankly, My Friend 18 said the other day he was not going to split hairs, I 19 believe he's splitting hairs right now. I've split all 20 my hairs as you can tell by looking at me, but... 21 COMMISSIONER SIDNEY LINDEN: Twenty-four 22 (24) to forty-eight (48) hours has been mentioned in the 23 evidence. 24 MR. PETER DOWNARD: Excuse me, I'm not 25 splitting hairs on this point.
281 COMMISSIONER SIDNEY LINDEN: No. 2 MR. PETER DOWNARD: This is -- this is an 3 area where words like, 'pressure' or 'aggressive' are 4 used which as Mr. Hutchison said can be pressed in all 5 sorts of directions by people for their own purposes. 6 They can result in misrepresentation in the media and 7 therefore I'm only asking for a fair an accurate 8 statement of what the evidence is from My Friend. 9 MR. PETER ROSENTHAL: And I'm doing my 10 best to do so. 11 COMMISSIONER SIDNEY LINDEN: Yes, there 12 is evidence of twenty-four (24) to forty-eight (48) 13 hours. 14 MR. PETER ROSENTHAL: Yes. 15 COMMISSIONER SIDNEY LINDEN: I don't need 16 to hear from anybody else on this unless it affects your 17 interest directly. Does it? 18 MR. WILLIAM HORTON: Commissioner, I just 19 -- I just have one (1) very brief comment to make. 20 COMMISSIONER SIDNEY LINDEN: Yes, sir? 21 MR. WILLIAM HORTON: Because it's -- it 22 comes up all the time and it comes up in this way. 23 In -- in cross-examination it is not 24 necessary for someone to adhere strictly to all the 25 evidence that has already been --
291 COMMISSIONER SIDNEY LINDEN: As long as 2 it's put fairly and accurately. 3 MR. WILLIAM HORTON: Exactly. 4 COMMISSIONER SIDNEY LINDEN: And that's 5 fine. 6 MR. WILLIAM HORTON: And -- and so we -- 7 we keep hearing objections that are based on, there's no 8 evidence to this point. It is possible to try and get a 9 witness to re-characterize evidence that has already been 10 heard in a different way. It is possible to have the 11 witness accept different language than has been used 12 previously. 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. WILLIAM HORTON: That's -- and that's 15 my concern is that we keep getting objections based on 16 the fact that you can never get -- try to get a witness 17 to say something that hasn't already been said. 18 COMMISSIONER SIDNEY LINDEN: Well, I 19 don't think that's what we have here, Mr. Horton, but I 20 appreciate your observation. 21 MR. PETER ROSENTHAL: I -- I -- 22 COMMISSIONER SIDNEY LINDEN: The phrase, 23 twenty-four (24) to forty-eight (48) hours has been used, 24 the word 'immediate' -- 25 MR. PETER ROSENTHAL: Yes.
301 COMMISSIONER SIDNEY LINDEN: So, if you 2 would be -- 3 MR. PETER ROSENTHAL: But, I do, with 4 respect, think that the word, 'immediate' does come 5 within what Mr. Horton so ably expounded. But, in any 6 event I'll -- I'll move on, sir, if I may. 7 COMMISSIONER SIDNEY LINDEN: That's fine. 8 9 (BRIEF PAUSE) 10 11 MR. PETER ROSENTHAL: Thank you. Sorry. 12 That was a housekeeping matter about exhibits. Sorry to 13 everyone. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: So, the -- the speed of twenty-four 17 (24) to forty-eight (48) hours I dealt with, but then you 18 -- the second problem that you identified as something 19 that interfered with the appointment of facilitator/ 20 negotiator was the expression by -- by the Premier's 21 office, through Ms. Hutton that they did not want it 22 viewed as an Aboriginal issue. 23 A: Right. 24 Q: Of course that, in one sense, would 25 seem to be saying that your Committee shouldn't even deal
311 with it, because your Committee is a committee 2 specifically to address Aboriginal issues; isn't that 3 fair? 4 A: Yes. 5 Q: And secondly, the way your Committee 6 did work was with special knowledge of Aboriginal issues 7 and dealing with things as Aboriginal issues -- 8 A: Yes. 9 Q: -- right? And in particular, if you 10 were to appoint, for example, a facilitator/negotiator, 11 you might appoint an Aboriginal person, for example? 12 A: We would probably appoint somebody 13 who we felt would have the respect and trust of the group 14 that was occupying the property. 15 Q: Yes. 16 A: Because, otherwise, without trust and 17 respect there's no ability to reach a negotiated 18 solution, even for a process solution. 19 Q: Yes. 20 A: So, that could have been an 21 Aboriginal person or somebody from ONAS who had the 22 respect of the Aboriginal community. 23 Q: Right. 24 A: Or some other -- it could be any 25 person who had the respect and trust of both government
321 and the occupying people. 2 Q: And -- but to appoint a person from 3 ONAS or an Aboriginal person would be viewing it as an 4 Aboriginal issue and therefore contrary to the 5 instructions you were getting from the Premier's office? 6 A: Right, right. 7 Q: So, you couldn't do that? 8 A: We couldn't do that. 9 Q: Now, you indicated that, given those 10 restrictions, you were hoping, would be a fair way to 11 characterise it, I think -- 12 A: Hmm hmm. 13 Q: -- that the meeting with Inspector 14 Carson might play some role of a process negotiation; is 15 that fair? 16 A: Yes. 17 Q: But, as you indicated a few moments 18 ago, when you appointed facilitator/negotiators in 19 general, you wanted it to be someone who had the trust of 20 the people, right? 21 A: Yes. 22 Q: And it's not likely that an OPP 23 officer, who's commanding OPP officers who already had 24 some unpleasant interchanges with the occupiers, would be 25 such a person; isn't that fair?
331 A: The fact of his being in that 2 position would make it more difficult for him. 3 Q: Yes. 4 A: His -- his position would make it 5 more difficult for him to gain the trust of the 6 occupiers, regardless of whatever his personal qualities 7 might be. 8 Q: Oh, yes. Yes, absolutely. Even if 9 he were the most trained and excellent facilitator/ 10 negotiator -- 11 A: Yes. 12 Q: -- the fact that he comes as an OPP 13 officer -- 14 A: Yes. 15 Q: -- would make it very difficult, you 16 would think -- 17 A: Yes. 18 Q: -- to establish that kind of trust; 19 isn't that fair? 20 A: I agree. 21 Q: Now, I would like to look at what 22 happened a little bit in the next couple of days, and get 23 from you what could have happened if there had been a 24 facilitator/negotiator who had been appointed by your 25 Committee and who had fulfilled the criteria that your
341 Committee would have been looking for -- 2 A: Okay. 3 Q: -- in such a person. Now, we know 4 that what did happen, of course, was that within two (2) 5 days, Dudley George was shot and killed. 6 We're told by Inspector Carson who was the 7 Incident Commander, that the reason that the OPP officers 8 were ordered to march down the roadway late in the 9 evening of September the 6th, towards where the occupiers 10 were, was because of concerns about the occupiers being 11 out of the Park in the sandy parking lot, as it's been 12 called. 13 I don't know if you -- 14 A: Hmm hmm. 15 Q: -- know the scene. We've been 16 listening to this for several months now. There is the 17 former Provincial Park site and then just outside the 18 gates of that there is a parking lot that is a public 19 parking lot and that -- 20 A: Hmm hmm. 21 Q: -- there has been termed the sandy 22 parking lot in these proceedings. 23 A: Okay. 24 Q: And we understand -- the evidence 25 that we've had at these proceedings is that at some time,
351 earlier on September 6th, there had been -- some of the 2 occupiers had been out in the sandy parking lot. And 3 there was a confrontation between one (1) of the 4 occupiers and a person driving by, a Band Councillor, 5 with whom he had antagonistic relations, I don't have to 6 tell you -- 7 A: Hmm hmm. 8 Q: -- all the details of that, several 9 hours earlier. And that got mischaracterized as an 10 attack on a private person who had nothing to do with 11 it -- 12 A: Hmm hmm. 13 Q: -- and got exaggerated in the extent 14 of the attack in -- as the information was relayed to the 15 Incident Commander, John Carson. 16 A: Hmm hmm. 17 Q: And so because of that and other 18 concerns he said he had his officers marching down there 19 to tell the people to go back into the Park, you know, to 20 get them back into the Park and arrest them if they 21 didn't. 22 Of course we have evidence that for the 23 previous couple of days they'd been told the OPP wants 24 them out of the Park because they were trespassers. 25 And we have evidence that nobody told them
361 what we want now as they marched on them, is that you go 2 back in the Park, although Inspector Carson's view was 3 that they should have realized that from the 4 circumstances. 5 A: Hmm hmm. 6 Q: And then what happened is there was a 7 confrontation and Dudley George was killed. 8 Now, I would suggest to you that if your 9 committee had appointed a facilitator/negotiator of the 10 type that you would have sought that person would have 11 surely been able to make some contact with the people 12 prior to the evening of September 6th, is that correct, 13 if you'd appointed that person on September 5th? 14 OBJ MS. KIM TWOHIG: I object to this 15 question on the basis that it's pure speculation -- 16 COMMISSIONER SIDNEY LINDEN: Yes, it is. 17 MS. KIM TWOHIG: -- as to what might 18 have happened. 19 COMMISSIONER SIDNEY LINDEN: Yes. 20 MR. PETER ROSENTHAL: Well, with respect, 21 Mr. Commissioner, we are trying to see how to avoid 22 violence in similar circumstances in future. We have 23 now, in the evidence before this Inquiry that the 24 appointment of a facilitator/negotiator was precluded by 25 the two (2) considerations she mentioned.
371 And it's right within the central core of 2 this Inquiry to explore what would have happened 3 otherwise. And I would imagine that would affect several 4 recommendations that you might make about avoiding 5 violence in similar circumstances in future, sir. 6 COMMISSIONER SIDNEY LINDEN: Well, you're 7 asking if a facilitator/negotiator had been appointed, 8 what that person might have done. 9 MR. PETER ROSENTHAL: I'm going to ask, 10 sir, whether several specific things would have likely 11 happened had such -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. PETER ROSENTHAL: -- such a person 14 been appointed. 15 MR. DERRY MILLAR: Well, it is pure 16 speculation. We don't know. And how can this Witness 17 say what would have happened if something had -- if an -- 18 if a negotiator/facilitator had been appointed. She 19 can't say what would have happened because a person 20 wasn't appointed and so we don't know. She might be 21 asked what she would expect to have happened, but that's 22 a different question. 23 COMMISSIONER SIDNEY LINDEN: Well, that's 24 a question I thought is appropriate one. 25 MR. PETER ROSENTHAL: Well, I wasn't
381 going to ask what would have happened -- 2 COMMISSIONER SIDNEY LINDEN: You were -- 3 MR. PETER ROSENTHAL: -- I was going to 4 ask -- 5 COMMISSIONER SIDNEY LINDEN: But you did. 6 MR. PETER ROSENTHAL: No. 7 COMMISSIONER SIDNEY LINDEN: I think you 8 did put it almost in that tone. 9 MR. PETER ROSENTHAL: With -- with 10 respect, I believe all I asked so far is would that 11 person have been appointed within the next two (2) days. 12 If that person -- 13 COMMISSIONER SIDNEY LINDEN: No. 14 MR. PETER ROSENTHAL: No, sorry. If the 15 -- the only -- the only question I believe I asked to far 16 and the record will show, but I believe -- I was just 17 beginning on this and I believe that the question that I 18 was stopped on was the following: If a facilitator/ 19 negotiator had been appointed by your committee on 20 September 5th, would it be likely that that person would 21 have made contact -- would have had -- would have made 22 contact with the people by September 6th? 23 COMMISSIONER SIDNEY LINDEN: See, I think 24 the way your question's put is objectionable. 25 MR. PETER ROSENTHAL: Well, I'd -- I'd be
391 happy to change it. 2 Would you expect, as My Friend suggested-- 3 COMMISSIONER SIDNEY LINDEN: That's what 4 I would prefer? 5 MR. PETER ROSENTHAL: -- would you have 6 expected that that person would have made contact by 7 September 6th? 8 COMMISSIONER SIDNEY LINDEN: What would 9 the person have done if they had been appointed? 10 MS. ANDREA TUCK-JACKSON: Mr. 11 Commissioner, I do have a concern. 12 COMMISSIONER SIDNEY LINDEN: Yes...? 13 MS. ANDREA TUCK-JACKSON: And my concern 14 is that My Friend has not yet put to the Witness all of 15 the relevant facts that would affect any type of response 16 that she would have to this question. 17 So, for example, much of the answer is 18 going to depend upon not only the personality of the 19 negotiator, but -- but frankly the willingness of the 20 occupiers to communicate. And it hasn't been put to this 21 Witness the various scenarios and attempts that were made 22 to communicate that ultimately failed, whether it was 23 through Ovide Mercredi, through those people from the 24 Kettle and Stony Point Reserve or individual officers. 25 So, my concern is that the value that this
401 Witness' evidence or response is going to be virtually -- 2 to be accorded no weight, because you don't have all of 3 the different factors being put to her. And that, 4 respectfully, is why, in my respectful submission, the 5 question's inappropriate. 6 COMMISSIONER SIDNEY LINDEN: Well, it 7 depends on how, in my view, how the question is asked. 8 MR. PETER ROSENTHAL: Yes. 9 COMMISSIONER SIDNEY LINDEN: If it's put 10 in a way you're not asking her to tell what would happen, 11 but in an ordinary situation -- 12 MR. PETER ROSENTHAL: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- when you 14 would have appointed a facilitator or negotiator. You're 15 not saying in these -- because you have to know every 16 fact in order to give an intelligent answer. 17 MR. PETER ROSENTHAL: Absolutely. Yes. 18 COMMISSIONER SIDNEY LINDEN: Or helpful 19 answer. 20 MR. PETER ROSENTHAL: Yes. No, I -- I do 21 appreciate that, Mr. Commissioner. 22 But so -- but may I reiterate with 23 response to what Ms. Tuck-Jackson indicated that we do 24 have the evidence as to the kind of person that would 25 have been appointed facilitator/negotiator by this
411 committee. But -- but I agree that of course we -- 2 COMMISSIONER SIDNEY LINDEN: You -- 3 MR. PETER ROSENTHAL: We -- we cannot 4 tell what would have happened in -- in any changed 5 circumstances. Unfortunately, real life is not like an 6 experiment, you can't redo it. Dudley George is dead and 7 no matter what, we can't bring him back. But, we can 8 explore what this expert witness -- is expert on -- on 9 these issues, would think might have happened -- 10 COMMISSIONER SIDNEY LINDEN: In a generic 11 way. I'm thinking that this an appropriate line of 12 questioning in a generic way. 13 MR. PETER ROSENTHAL: Yes. 14 COMMISSIONER SIDNEY LINDEN: I'm thinking 15 that when you bring it into the specifics without the 16 full knowledge of all the evidence -- 17 MR. PETER ROSENTHAL: Yes. 18 COMMISSIONER SIDNEY LINDEN: -- and the 19 context. It would be difficult for this person to give a 20 helpful answer, or any person unless they have the whole 21 story. 22 But in a generic way, I don't think it's 23 inappropriate to ask these kind of questions. We've been 24 them of other witnesses. 25 MR. PETER ROSENTHAL: Yes. Well, I --
421 I'll try to keep it as generic as possible and -- and you 2 understand the discussion that's going on, Ms. Jai, and 3 of course neither I or anyone else thinks that you could 4 tell with any degree of certainly as to what might have 5 happened if we changed anything in this scenario. 6 So, with all those caveats, may I try to 7 proceed on a question by question basis, Mr. 8 Commissioner? 9 COMMISSIONER SIDNEY LINDEN: I -- I think 10 you've got to expect that there might still be some 11 objections. But, we'll try to move forward and try to 12 keep it as generic as possible. Carry on. 13 MR. PETER ROSENTHAL: Yes, sir. 14 COMMISSIONER SIDNEY LINDEN: I see Mr. 15 Roy on his feet and I'm not sure why. Do you have an 16 objection that affects your interest? 17 MR. JULIAN ROY: I -- I have a suggestion 18 in terms of how we might -- 19 COMMISSIONER SIDNEY LINDEN: Oh, to help 20 us -- 21 MR. JULIAN ROY: -- how we might proceed 22 with -- with dealing with hypothetical questions like 23 this. 24 COMMISSIONER SIDNEY LINDEN: Then I'm 25 happy to hear it.
431 MR. JULIAN ROY: It's my respectful 2 submission that if the hypothetical contains actual facts 3 that we don't have, it's fair to make an objection in 4 those circumstances. If there's no factual basis for the 5 hypothetical, that's fair. 6 But, if the -- if the suggestion is that 7 there's information missing from the hypothetical, in my 8 respectful submission, that goes to weight. And -- and 9 you, Mr. Commissioner, are in the perfect position to 10 assess the value of the evidence that's elicited, if 11 there's something missing from the hypothetical. And we 12 don't need objections a hundred times over things that 13 are missing. 14 Like Ms. Tuck-Jackson's objection, with 15 respect, it goes to weight. 16 COMMISSIONER SIDNEY LINDEN: We won't get 17 objections if the questions are put in a more generic 18 way. 19 MR. JULIAN ROY: But -- but, what Mr. 20 Rosenthal said I think bears repeating which is it's 21 impossible to craft a hypothetical that's going to have 22 all the information. So, if we have -- the basis for 23 objecting is we're missing some of the information from a 24 hypothetical, we're going to be here until kingdom come. 25 So, in my respectful submission, it just
441 goes to weight. And you're in the perfect position, you 2 know all the facts, you're in the perfect position to 3 assess that weight. 4 COMMISSIONER SIDNEY LINDEN: Well, I'm 5 trying to decide how helpful this evidence might be and 6 I'm not sure that it's all that helpful and that's my 7 problem. 8 Yes, Mr. Millar. Can you help me? 9 MR. DERRY MILLAR: Well, I don't think 10 that I -- I rose about this issue of hypotheticals. This 11 is a fact Witness. We don't have an expert. This 12 witness can -- hypothetical issue -- questions, in my 13 view, are not appropriate for this type of witness. 14 However, I still go back to the position I 15 took earlier. It might be helpful if you thought it 16 would be helpful to ask the witness what the witness 17 expected would have happened. 18 COMMISSIONER SIDNEY LINDEN: In a generic 19 way. 20 MR. DERRY MILLAR: In a generic way. 21 COMMISSIONER SIDNEY LINDEN: All the 22 facts of this case. 23 MR. DERRY MILLAR: But other than that 24 it's pure speculation. 25 COMMISSIONER SIDNEY LINDEN: Yes. Well,
451 let's see if we can move forward slowly and carefully. 2 MR. PETER ROSENTHAL: I shall move as 3 carefully as I can and I'm sure that My Friends will keep 4 me more in line than I would like to be kept. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: Ms. Jai, with respect to the 8 appointment of a facilitator/negotiator, the Committee 9 would try to do that very quickly; is that fair to say -- 10 A: Yes. 11 Q: -- if they do it? Because you want 12 the process negotiations to start right away if possible? 13 A: Yes. 14 Q: And the idea of process negotiations 15 is to try to avoid the violence and the ending of the 16 occupation of the blockades; is that fair? 17 A: That would be one (1) of the -- one 18 of the goals. 19 Q: One (1) of the important goals. 20 A: One (1) of the important goals. 21 Q: And so to realize that kind of a 22 goal, one (1) thing that you would expect the 23 facilitator/negotiator to do would be to establish some 24 communication between occupiers or blockaders and the 25 police; is that fair, to be sort of a go-between?
461 A: Yes. The facilitator would be kind 2 of a go-between and talk to the occupiers and then 3 probably talk to the police so that there -- there 4 wouldn't have to be direct dealings between the occupiers 5 and the police. 6 Q: Yes. 7 A: And that would increase understanding 8 between those two (2) groups. 9 Q: And that might avoid 10 misunderstandings? 11 A: Yes. 12 Q: And in particular if, for example, 13 police had a concern about the occupiers being in some 14 particular spot and they expressed that to a facilitator, 15 the facilitator might go back to the occupiers and say, 16 Why don't you move over here and then the police will be 17 happy; something like that. 18 Is that among the kinds of things that a 19 facilitator/negotiator might do? 20 A: That's possible. 21 Q: And similarly if the police had 22 concerns -- sorry, if the occupiers had concerns about 23 police being right next to them and wanted them to move 24 back a bit and they expressed those concerns to a 25 facilitator/negotiator, that facilitator/negotiator might
471 try to have that desire realized with the police; is that 2 fair to say? 3 A: Yes. 4 Q: I mean, those would be some of the 5 kinds of things that the facilitator might do in the very 6 short run -- 7 A: Yes. 8 Q: -- to avoid misunderstandings that 9 could lead to -- to violence? 10 A: Yes. I mean, one of the things that 11 would be potentially a delay in appointing a 12 facilitator/negotiator would be simply finding the right 13 person who was available at that moment and who could go 14 right away. 15 So, I don't know if, you know, even if 16 we'd had the direction right on the morning of September 17 5th to appoint a facilitator/negotiator, I don't know how 18 long that would have taken, because it would have 19 depended upon finding the right person and that person 20 being available, and then that person getting to the 21 Ipperwash Provincial Park. 22 Q: Right. 23 A: So, those things all take time. And 24 I mean one of the things that would be useful would be 25 for government to have a list of people, like a roster,
481 of people who could be available in these types of 2 situations who were trained facilitator/negotiators and 3 who were well-regarded by the Aboriginal community. 4 Q: Sure. 5 A: That's something that we did not have 6 in place at the time that I think would be useful. 7 Q: Yes. So, that's an important 8 suggestion, so perhaps I could interrupt the flow of what 9 I was saying. 10 That would be then a recommendation that 11 you would suggest the Commissioner might consider when 12 he's making recommendations at the end of this process as 13 to how to avoid violence in similar circumstances -- 14 A: Yes. 15 Q: -- in the future? 16 A: Yes. It's something that your line 17 of questioning makes me aware that we did not have at the 18 time. And that was -- you know, even if we had had the 19 direction to go, the lack of that list of readily 20 available people could, itself, have been another 21 impediment to quickly appointing a facilitator. 22 Q: Right. So, that would be something 23 that Mr. Commissioner might consider at the end of the 24 day? 25 A: Yes.
491 Q: But, in any event, because of the 2 factors that you've told us, in this case you never got 3 around to seeing to whether there was one available? 4 A: Right. 5 Q: Now, your Committee did spend a lot 6 of time, both on September 5 and 6, discussing the 7 question of whether the OPP should be asked to get the 8 occupiers out of the Park by using the Criminal Code 9 and/or whether there should be a civil injunction and so 10 on. 11 A: Yes. 12 Q: Now, it seems clear, do you agree, 13 that actually what emerged from your Committee was that 14 you would pursue both avenues? 15 You would seek an injunction and also the 16 OPP would be asked to remove the occupiers, using 17 criminal charges of mischief? 18 A: I would just -- I think that the -- 19 there were sort of -- that was two (2) separate -- the 20 second point about what the OPP would be asked to do was 21 two (2) separate things. 22 One (1) is that they would be asked to 23 remove the occupiers in a peaceable way, in other words 24 just ask them if they would leave and then secondly, if 25 there were grounds for criminal charges, that it would be
501 within OPP police discretion as to whether to lay a 2 charge or not. 3 Q: Right. But, they would be asked to 4 remove them and to do it either by asking -- by the 5 people -- telling them, Would you please leave, and 6 having them voluntarily leave, or to consider the 7 possibility and in their discretion -- 8 A: Yes. 9 Q: -- use the possibility of laying 10 criminal -- 11 A: Yes. 12 Q: -- charges, right? 13 A: I -- yes. It was not expected that 14 this would be an effective means of removing the people. 15 Q: Well -- 16 A: Because there -- there -- it was -- I 17 mean, we discussed it at Committee meetings that, 18 probably if, you know, if you just asked them to leave 19 they wouldn't. 20 Q: Right. 21 A: And that there were not -- the only - 22 - unless the occupiers were actually committing criminal 23 offences, it was only in that situation that the OPP 24 would have the grounds for a charge. 25 Q: Yes.
511 A: And even then if they charged them, 2 they could still come back to the Park. 3 Q: Yes. Yes, that was some of the 4 discussion that took place at the Committee. 5 A: Yes. 6 Q: And there were different views on all 7 those issues expressed in the course of the meetings -- 8 A: Yes. 9 Q: -- on September 5 and 6 by different 10 participants. 11 A: Yes. 12 Q: Is that fair? 13 A: Yes. 14 Q: Now, could we look, please, at your 15 notes of September 5th which are at Tab 31 of your 16 documents and which are Exhibit P-536 Inquiry Document 17 Number 1012579? 18 MR. DERRY MILLAR: With My Friend's 19 permission, Commissioner, I would like to make sure that 20 we have -- My Friend referred to the September 6, 1995 21 briefing note for Mr. Harnick; it's Inquiry Document 22 1010501. 23 And although it's been referred and the 24 appendix that's part of it are -- is already an exhibit, 25 I don't -- I cannot locate an actual copy of September 6,
521 1995. 2 And I would ask that at this point we make 3 the September 6, 1996 briefing note and its appendices 4 the next exhibit and I will provide, at the break, the 5 Registrar with a copy. 6 COMMISSIONER SIDNEY LINDEN: Thank you. 7 MR. DERRY MILLAR: And I apologize for 8 interrupting My Friend, but I wanted to get this 9 housekeeping matter done. 10 MR. PETER ROSENTHAL: That kind of an 11 interruption I appreciate much more than some of your 12 other interruptions, Mr. Millar, thank you. 13 COMMISSIONER SIDNEY LINDEN: What number? 14 THE REGISTRAR: It's 709, Your Honour. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 709. 17 18 --- EXHIBIT NO. P-709: Document Number 1010501. 19 ONAS briefing note for Hon. 20 Charles Harnick, Minister 21 responsible for native 22 affairs, and appendix, Sept. 23 06/'95. 24 25 THE WITNESS: Yes. So, I have those
531 notes of September 5th in front of me. 2 MR. PETER ROSENTHAL: Thank you. And 3 would it be convenient for you to sit down -- 4 THE WITNESS: Sure. 5 MR. PETER ROSENTHAL: -- or -- or to move 6 a little bit -- 7 THE WITNESS: Yes. 8 MR. PETER ROSENTHAL: -- so that we -- so 9 that I can ask Mr. Millar to please put those on; that's 10 Document Number 1012579. 11 COMMISSIONER SIDNEY LINDEN: Which binder 12 and which tab number? 13 THE WITNESS: Oh, sorry, it's in the 14 Commissioner's binder. Tab 31. 15 COMMISSIONER SIDNEY LINDEN: I'm sorry? 16 THE WITNESS: Tab 31. 17 COMMISSIONER SIDNEY LINDEN: I'm sorry? 18 THE WITNESS: Tab 31. 19 COMMISSIONER SIDNEY LINDEN: Tab 31 of 20 which binder, the Commission's binder? 21 THE WITNESS: Yes. 22 MR. PETER ROSENTHAL: Yes, in the Comm -- 23 yes. I'm only -- any tabs that I refer to are only from 24 the Commission's binder, I don't have my own binder. 25 COMMISSIONER SIDNEY LINDEN: Thank you.
541 Thank you very much. I have it. 2 MR. PETER ROSENTHAL: And it's, I 3 believe, towards the back of Tab 31. 4 COMMISSIONER SIDNEY LINDEN: I have it. 5 MR. PETER ROSENTHAL: The notes are in 6 the reverse chronological order. 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. DERRY MILLAR: September 5th? 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: September 5th, yes. And I -- I 12 should like to look if I may at page 7 of September 5. 13 A: Yes. 14 15 (BRIEF PAUSE) 16 17 Q: And towards the very bottom of that 18 page... 19 A: Yes. 20 Q: ...we find the following: 21 "We will seek an injunction." 22 A: Yes. 23 Q: "We will charge them with trespass or 24 mischief. We will gather info." 25 Is that correct?
551 A: Yes. Yes. 2 Q: Now, as -- as you told some other 3 cross-examiner, I can't recall whom, you -- it was your 4 habit to make notes contemporaneously as -- as the 5 meeting progressed; is that -- 6 A: Yes. 7 Q: -- correct? 8 So, this appears to be conclusions as to 9 what would be done after the September 5th meeting, 10 correct? 11 A: Well, this was during the meeting. 12 Q: Yes, but conclusions as to -- this 13 was saying these are things we will do subsequently? 14 COMMISSIONER SIDNEY LINDEN: Just a 15 minute. Yes, Mr. Downard...? 16 MR. PETER DOWNARD: Mine nor the witness' 17 evidence is that with respect to this phrase in the 18 notes, she said: 19 "I don't think there is a consensus 20 there. We're just batting around 21 options." 22 COMMISSIONER SIDNEY LINDEN: Yes, I have 23 that note on my notes, but I mean he's putting the 24 evidence from the notes; he's reading directly from the 25 notes. So it -- yes?
561 MS. ANDREA TUCK-JACKSON: Also, Mr. 2 Commissioner, at page 9 there's another statement: 3 "We will seek an injunction. We will 4 try to peaceably remove the dissidents 5 up to OPP discretion." 6 I'm just concerned, that in fairness, that 7 it all be put in its proper context, that's all. 8 MR. PETER ROSENTHAL: I was going to get 9 to that too, Mr. Commissioner. I'm asking about what 10 these -- these words mean. 11 COMMISSIONER SIDNEY LINDEN: I understand. 12 You're doing what others have done, you're quoting from 13 the notes at the moment. 14 MR. PETER ROSENTHAL: And I'm doing -- I 15 can't -- I can't show her all the notes in one time. 16 COMMISSIONER SIDNEY LINDEN: That's fine, 17 carry on. 18 MR. PETER ROSENTHAL: Thank you. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: Now, this is not attributed to any 22 one (1) person, so this -- is it fair to say that this is 23 sort of a summary of what -- what was -- what it seemed 24 would be done from -- from the consensus or from the 25 words that were being said at that time?
571 A: Well, this was my -- my -- I mean, 2 this was what appeared to be some coalescing of ideas at 3 that moment in time and at that meeting. 4 Q: Exactly, yes. But -- 5 A: It was not -- 6 Q: -- but -- 7 A: -- the conclusion of the meeting, but 8 they were -- 9 Q: Yes. 10 A: -- thoughts that were expressed by 11 various people that there seemed to be some coalescence 12 around these thoughts. 13 Q: Yes. 14 COMMISSIONER SIDNEY LINDEN: I'm not 15 reading from the evidence, either, but I do have a note 16 that when she gave her evidence, she said on this point 17 there was not a consensus yet. 18 MR. PETER ROSENTHAL: Well -- 19 COMMISSIONER SIDNEY LINDEN: And I don't 20 need you to read the evidence, but -- 21 MR. PETER ROSENTHAL: Yes -- 22 COMMISSIONER SIDNEY LINDEN: -- she did 23 say that. 24 25 CONTINUED BY MR. PETER ROSENTHAL:
581 Q: Well, in fact the -- perhaps dealing 2 with the question of consensus, I believe that you did 3 say that you thought consensus had been achieved at some 4 point, but -- 5 A: At the end of the meeting. 6 COMMISSIONER SIDNEY LINDEN: Yes, but 7 not -- 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: At the end of the meeting. But isn't 11 it perhaps fair to say that you can't be sure that there 12 was really any consensus at the -- at either of those 13 meetings? 14 There were different views expressed 15 strongly and then at the end, people didn't sign on to 16 say, oh yeah, We'll do one (1), two (2) and three (3), 17 did they? 18 A: That's correct. I could only, as the 19 Chair, pull together what I thought the consensus was -- 20 Q: Yes. 21 A: -- and then try to consolidate that 22 by having that in the minutes which were recorded and 23 sent immediately to all -- 24 Q: Yes. 25 A: -- the participants. That doesn't
591 preclude anybody who was at the meeting from leaving the 2 meeting with a completely different intention of what 3 should be done. 4 Q: Absolutely, yes. So, we can't really 5 be sure that there was consensus on anything in the 6 normal use of the word consensus; isn't that fair? 7 A: Well, at the end of the meeting, I 8 felt that we had reached as much of a consensus as could 9 be reached, given what people were publicly saying at the 10 meeting -- 11 Q: Right. 12 A: In that I summarized it at the end 13 and people either agreed or remained silent. Like, 14 nobody said, I disagree -- 15 Q: Right. 16 A: -- at the end, when we -- we reached 17 the consensus, at the end, which is summarized in the 18 formal meeting notes. 19 Q: Right. So -- but, usually by 20 consensus, I would suggest to you, one means something 21 stronger than that. One means where it's clear that 22 everybody really agrees as opposed to some people just 23 stopping arguing. 24 A: I don't want to debate -- 25 Q: No, yeah.
601 A: -- the meaning of consensus. 2 Q: Okay, no, yeah, I don't want to 3 debate the word either. But -- 4 A: Hmm hmm. 5 Q: -- in any event, as you frankly told 6 us, you don't know what people walked out of there 7 thinking. They didn't all say, Yes, we agree with your 8 arguments, 1,2,3, right? 9 A: That's true. 10 Q: Now -- so, at this point, you wrote 11 this down, is it fair to say this was sort of your 12 summary as to what was emerging at that point in the 13 meeting as to what should be done? 14 A: Yes. 15 Q: Okay. And it says: 16 "We will seek an injunction. We will 17 charge them with trespass or mischief." 18 Now, this does reaffirm what I suggested 19 before that it would be possible to simultaneously be 20 seeking an injunction and also consider criminal charges, 21 right? 22 A: Yes. 23 Q: And if -- was only if someone wanted 24 the people out of the Park as soon as possible, it 25 wouldn't be clear which of those might happen quicker and
611 they would want you to pursue -- might want you to pursue 2 both. 3 Some people might have wanted you to 4 pursue both those avenues simultaneously, right? 5 A: Yes. 6 Q: Now, one thing I noted and I don't 7 know if ten (10) years later you'll be able to assist me 8 on this, but looking at this it appears that the "or 9 mischief" was added afterward by you. 10 It's written in a different -- different 11 hand. Sorry, the same -- it's your handwriting but -- 12 A: Yes. 13 Q: -- it looks different. And I would 14 suggest to you, we have another document that I'll be 15 coming to, where it's indicated that the case for 16 charging with mischief has -- has increased -- whatever. 17 I'll come to that. 18 So, is it likely that you added the, "or 19 mischief" afterward? 20 A: It's likely that I added it 21 afterwards, but still while in the meeting, in that I 22 would not go back and change meeting notes after the 23 meeting -- 24 Q: I see. 25 A: But, it's possible that as the
621 discussion later continued and we talked about the 2 different potential charges -- 3 Q: Right. 4 A: -- and somebody maybe mentioned 5 mischief as being the most likely, that I would have just 6 gone back to the -- like the previous page -- 7 Q: I see. 8 A: -- of my notes and -- 9 Q: Right. 10 A: -- written it. I would not have 11 added it later. 12 Q: Yes, I see. Okay, so -- and it might 13 have been when you learned, for example, that the 14 criminal charge of mischief can include interfering with 15 the lawful use of property, and that would be something 16 that it could be argued these persons were in the process 17 of doing? 18 A: I can't remember. 19 Q: Okay. Thank you. Now, at this point 20 it says, "We will charge them." 21 Now, of course you didn't mean that you 22 were going to run down to Ipperwash Provincial Park 23 personally and say, I say charge you with mischief, 24 right? 25 A: Right.
631 Q: But you meant presumably what was -- 2 what you wrote down what you meant by that was that the 3 OPP will charge them? 4 A: Yes. 5 Q: With either trespass or a mischief? 6 A: Yes. 7 Q: Now, then turning a couple of pages 8 later in the notes, as Ms. Tuck-Jackson pointed out on 9 page 9, you have a -- number 1: 10 "We will seek an injunction." 11 And a number 2: 12 "We will try to peace -- peaceably 13 remove the occu -- the dissidents. Up 14 to OPP discretion." 15 Now, again, that suggests two (2) things 16 going on simultaneously; one is civil and one through the 17 police. Is that correct? 18 A: Yes. 19 Q: Now as far as peaceful of course 20 presumably you would and everybody would always want to 21 do anything one could in a peaceful manner, if possible. 22 A: Yes. 23 Q: But, the word 'peaceful' could 24 include a peaceful arrest of someone? 25 It didn't mean -- that doesn't mean
641 without arrest, does it or does it, when you write it 2 this way? 3 A: Well it was left to OPP discretion. 4 Q: Yes. Yes. In the course of these 5 meetings, we've heard there was much discussion about the 6 power or a lack of power of the Government to direct 7 police officers, right? 8 A: Yes. 9 Q: To say -- and presumably it was clear 10 to, at least, most people at the meeting from what was 11 said, that the Government did not have the power to say 12 to a police officer, Arrest that person, right? 13 A: Right. 14 Q: That the powers of arrest are the 15 powers of an individual police officer acting in her or 16 his discretion? 17 A: Right. 18 Q: Under the Criminal Code and so on, 19 right? 20 A: Yes. 21 Q: But, yet it was consensus at the 22 meeting, on this point, I would suggest to you, at both 23 meetings, that government people could ask the OPP to 24 remove them, right? 25 A: Yes. If you just read just above
651 that -- those lines, on the top of page 9 it says: 2 "Attempts should be made to remove 3 people. Leave it up to OPP as to how 4 to do this." 5 Q: Yes. So, there's no question that 6 the mechanism of how to do it would be left up to the 7 OPP? 8 A: Yes. 9 Q: Nobody ever started talking about, We 10 should have ten (10) officers over here and twenty (20) 11 officers over here and approach in this way or that way, 12 right? 13 A: Correct. 14 Q: Nobody talked about any detail -- 15 A: No. 16 Q: -- as to how the OPP would do their 17 job? 18 A: It would be inappropriate. 19 Q: That would be inappropriate. But, it 20 was clear that they'd be asked to remove them? 21 A: Yes. 22 Q: Now, as far as the relationship 23 between injunction and criminal charge removal, would you 24 agree that even if there had been an injunction granted, 25 it would be likely you would expect based on your
661 knowledge and experience of how these things operate, 2 that there still would be a question as to how to affect 3 the injunction. 4 If the injunction ordered the people to 5 leave the Park, they still may -- they may not say, Oh, 6 sure we'll leave. 7 There still might be a question of police 8 involvement and their leaving; is that fair? 9 A: Yes. 10 Q: So, the -- the need for a 11 facilitator/negotiator to try to help ease a process of 12 removal is not obviated by the fact of a civil 13 injunction, right? 14 A: Correct. You could have a civil 15 injunction and still have a mediation facilitation 16 process going on -- 17 Q: Yes. 18 A: -- with the injunction as, sort of, 19 the last resort. 20 Q: But even if the last resort has come 21 into play, even if the injunction's granted and the court 22 orders the following people must leave Ipperwash 23 Provincial Park, it would still be very important to have 24 a facilitator/negotiator who could assist in getting them 25 to obey that order, rather than having it be a violent
671 confrontation; isn't that fair? 2 A: That's a potential role of the 3 facilitator, yes. 4 Q: Yes. Now if we could please turn to 5 Tab 26 of the Commissioner's documents, which is Exhibit 6 P-634, Inquiry Document 1011745. 7 8 (BRIEF PAUSE) 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Okay. Mr. Millar says I should call 12 it P-519. 13 MR. DERRY MILLAR: P-549. 14 MR. PETER ROSENTHAL: Sorry, 549. 15 16 (BRIEF PAUSE) 17 18 MR. PETER ROSENTHAL: Sorry, there is 19 some confusion with the exhibits, Mr. Commissioner. 20 COMMISSIONER SIDNEY LINDEN: No, this one 21 in particular. 22 MR. PETER ROSENTHAL: Not only -- not 23 only in my head. 24 COMMISSIONER SIDNEY LINDEN: No, this one 25 in particular has a couple of numbers --
681 MR. PETER ROSENTHAL: Yes. 2 COMMISSIONER SIDNEY LINDEN: -- attached 3 to it. The correct one, I think, is 549. 4 5 (BRIEF PAUSE) 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: I believe you told us that the -- the 9 notes on this document were of Mr. Lazor's; is that 10 correct? 11 A: Yes. 12 Q: And they were, to your observation, 13 they were notes that he made when you were briefing him 14 about these matters; is that correct? 15 A: I believe so. Either when I was 16 briefing him or very -- within a few minutes of the 17 briefings. 18 Q: Yes. I should like to look at the 19 left hand side. There's a -- in the top in handwriting 20 is "issue" and then I'm not going to deal with those, 21 those numbers 1,2,3 but then under that there is another 22 group of 1,2,3, labelled "options," I believe. 23 Is that correct? 24 A: Yes. 25 Q: And the first option appears to be,
691 Leave alone? 2 A: "Leave it alone." 3 Q: And that, I would put to you, would 4 have been a realistic option at this point in the short 5 run. 6 A: Yes. 7 Q: Given the fact that there was no 8 serious inconvenience of the general public caused by 9 this occupation; isn't that fair? 10 A: Yes. 11 Q: And then number 2 is that civil 12 injunction? 13 A: Civil injunction. 14 Q: And number 3 is criminal -- 15 A: Criminal law. 16 17 (BRIEF PAUSE) 18 19 Q: Now, I gather that the first option, 20 leave alone, or both, could have been an option, as you 21 just indicated -- 22 A: Hmm hmm. 23 Q: -- was not seriously considered as an 24 option because of the insistence by the Premier's office 25 that it be dealt with quickly?
701 A: Yes. 2 3 (BRIEF PAUSE) 4 5 Q: Now, if I go further into that 6 document, excuse me a moment, Mr. Commissioner. 7 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 8 Downard...? 9 MR. PETER DOWNARD: Your Honour, 10 Commissioner, sorry. The witness can obviously say what 11 she thinks the rationale for certain choices being made 12 was but, in my submission, she can't say what other 13 people were thinking. 14 She cannot -- she is essentially just 15 given an answer which speaks for what was in the minds of 16 everyone in these -- in these meetings. 17 In these meetings we see all sorts of 18 options, all sorts of discussion, we've heard evidence 19 about vigorous discussion of different options. 20 So what was in the minds, once again, of 21 all the other people in the meeting is not something that 22 this witness could speak to. 23 COMMISSIONER SIDNEY LINDEN: Well, I'm -- 24 MR. PETER ROSENTHAL: With respect, 25 again, I think that's splitting hair. It was clear, in
711 my respectful submission, she of course was not speaking 2 on behalf of all the people's minds. We already 3 established that she wasn't even sure there was a 4 consensus in the -- in the other sense of the word on 5 anything. 6 And I believe what Mr. Downard is 7 referring to is when I said option 1, "leave it alone", 8 was not an option because of the insistence on immediacy 9 by the -- 10 COMMISSIONER SIDNEY LINDEN: I think 11 that's -- 12 MR. PETER ROSENTHAL: Or quickness. 13 COMMISSIONER SIDNEY LINDEN: -- what he 14 was referring to. 15 MR. PETER ROSENTHAL: And -- and it was 16 obvious that was her -- her view of -- as to why option 1 17 was not a realistic option in the circumstances. 18 COMMISSIONER SIDNEY LINDEN: That was the 19 impression I had. It may have been written down by Mr. 20 Lazor as a result of your discussion with him -- 21 THE WITNESS: Yes. 22 COMMISSIONER SIDNEY LINDEN: -- but you 23 were saying what your view was. 24 THE WITNESS: Yes. 25 COMMISSIONER SIDNEY LINDEN: Why it
721 wasn't left alone? 2 THE WITNESS: Right. 3 MR. PETER ROSENTHAL: Right. And I think 4 that was apparent from the questions and answers. 5 6 (BRIEF PAUSE) 7 8 MR. PETER ROSENTHAL: Sorry. Sorry, I 9 lost my place, thank you. 10 COMMISSIONER SIDNEY LINDEN: We're over 11 an hour now are you ready for a break? I mean we try to 12 keep us to an hour or a little bit more, but if you're 13 okay we'll continue. 14 THE WITNESS: I'm okay for now. 15 COMMISSIONER SIDNEY LINDEN: We'll 16 continue. 17 MR. PETER ROSENTHAL: Yes. Do you prefer 18 to stand because I can -- 19 THE WITNESS: No. 20 COMMISSIONER SIDNEY LINDEN: We're -- 21 MR. PETER ROSENTHAL: -- we can turn off 22 the projector if you do. 23 THE WITNESS: Okay. 24 MR. PETER ROSENTHAL: Would you like to? 25 THE WITNESS: Yes.
731 MR. PETER ROSENTHAL: Thank you. 2 MR. PETER ROSENTHAL: And I'll just deal 3 with the document without broadcasting it because you're 4 comfort is more important than anything else, in my 5 respectful submission, so you can concentrate on 6 answering the questions rather than thinking about your 7 back. 8 THE WITNESS: Thank you. 9 10 CONTINUED BY MR. PETER ROSENTHAL: 11 Q: Now, in this document the -- the 12 typed portion of it now at the -- towards the bottom of 13 Summary Advice, one reads: 14 "A mischief to property charge under 15 the Criminal Code could also be laid." 16 Now, we knew that but then what I'm 17 interested in is the next part: 18 "And new information (not available to 19 the Committee) indicates that it could 20 be an effective means of removing the 21 occupiers." 22 A: Yes. 23 Q: Now, can you assist us as to what 24 that new information was? 25 A: I believe that that was information -
741 - is the mic on? 2 Q: Yes. Sorry, could you turn her mic 3 on, please? 4 A: I believe that the new information 5 was as a result of the meeting of the legal subgroup that 6 met on the afternoon of September the 5th. And we had 7 information at that meeting from Scott Hutchison. 8 And he went over the possibility of using 9 the Criminal Code charge of -- of mischief and as -- 10 that's set out in the note that the legal subgroup did. 11 But, it does suggest that it would be reasonable for the 12 police to arrest those involved in the offence of 13 mischief so that that might, in fact, be a viable route 14 to go. 15 And we didn't have that information at the 16 meeting itself and Scott wasn't at the Interministerial 17 Committee Meeting on the 5th. 18 Q: I see. So at the meeting of 19 September 5th it wasn't known what criminal charges, if 20 any, could be laid based on what the occupiers had been 21 doing up to that point; is that what you're saying? 22 A: Yes. 23 Q: Although it was known that there 24 might be the possibility of a trespass charge -- 25 A: Yes.
751 Q: -- it was not known that there was a 2 -- what if any criminal charges might be laid? 3 A: Well, the possibility of -- of a 4 mischief charge was raised at the meeting, but we -- just 5 as -- maybe -- it was like maybe we could use the charge 6 of mischief, but there was no one who could really speak 7 to whether that would be an appropriate charge or not at 8 the meeting. 9 Q: Generally, people who are not very 10 familiar with criminal law might think that mischief 11 refers to damage to property only and might not realize 12 that there is a section of the mischief section of the 13 code that refers to mischief by interfering with the 14 lawful use of property? 15 A: Yes 16 Q: So is it possible that the new 17 information that Mr. Hutchison provided is that there is 18 that provision of the mischief section and it could be 19 well argued that the occupiers were violating that 20 section by interfering with the lawful use of the Park by 21 their occupation? Is that the new information? 22 A: I can't -- I mean I can't say 23 specifically that was it -- 24 Q: Okay. 25 A: -- it's just that he had the -- the
761 exact details of what is required to constitute the 2 elements of that offence. 3 Q: Right. Okay. Now then, if we could 4 turn later in this tab we find the document that you just 5 referred to entitled, Criminal and Civil Proceedings to 6 Terminate the Occupation of Ipperwash Provincial Park by 7 the Stoney Pointers. 8 A: Yes. 9 Q: So is it fair to say that the title 10 and the content indicate that this is a canvass of the 11 law and the possibilities of using, on the one hand, 12 criminal charges, and on the other hand, civil 13 proceedings to terminate the occupation of the Park? 14 A: Yes. 15 Q: And it begins, the first section is 16 entitled, Criminal And Quasi Criminal Offences, and 17 speaks to the possibility of using criminal charges to 18 terminate that occupation. 19 A: Yes. 20 Q: And it begins by stating on the 21 facts: 22 "There would appear to be at least one 23 Criminal Code charge available, 24 mischief to property under Section 25 431(c) or (d), everyone commits
771 mischief who willfully obstructs, 2 interrupts or interferes with the 3 lawful use, enjoyment or operation of 4 property." 5 So, that would appear to be the main 6 criminal charge that was being discussed in this memo. 7 A: Yes. 8 Q: Now nobody thought that the OPP was 9 not aware that there was such a charge in the Criminal 10 Code, did they? 11 A: Right. 12 Q: Didn't need your committee to meet to 13 tell the OPP that there's a mischief section of the 14 Criminal Code that has that provision, right? 15 A: That's true. 16 Q: Now this memo was prepared for you to 17 present or for someone to present to your minister; is 18 that correct? 19 A: Yes. I was involved in preparing it 20 with Elizabeth Christie to McCabe and input from Scott 21 Hutchison. And it was for the purpose of briefing my 22 minister and I believe we also shared it with the 23 Interministerial Committee members. 24 Q: Yes. Perhaps I could interrupt this 25 aspect of my examination to go to something I was going
781 to leave til the end. But it fits in here. 2 Your minister was the Minister of Attorney 3 General -- the Attorney General? 4 A: Yes. 5 Q: And the Attorney General, as well as 6 being Minister of Native Affairs, was also the senior law 7 officer in the Province who was responsible for, for 8 example, getting injunctions. 9 A: Yes. 10 Q: And seeing that there's a bit of a 11 tension one might say between those two (2) roles in a 12 situation like this. On the one hand, as Minister of 13 Native Affairs, his responsibility is to consider the 14 problems and situations of Aboriginal people. 15 And on the other hand, he's being asked to 16 use some legal apparatus against such people. That seems 17 to -- 18 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 19 Twohig...? 20 MS. KIM TWOHIG: Yes, Mr. Commissioner, 21 I'm concerned that this witness is being asked to discuss 22 whether or not there is a tension in the various roles 23 played by the Attorney General. And that's not an 24 appropriate question for her. It's something that you 25 may consider, certainly, in making your report and it's a
791 matter for argument by My Friend, but not a matter of 2 evidence. 3 MR. PETER ROSENTHAL: Well with respect, 4 it would be useful to you, in my respectful submission, 5 Mr. Commissioner, to find out if this person who was 6 reporting in these situations to the Attorney General, 7 felt that there was such a tension. 8 COMMISSIONER SIDNEY LINDEN: Perhaps you 9 could ask her if she experienced any tension in the role. 10 What her experience was with that possible tension. 11 MR. PETER ROSENTHAL: Yes. 12 COMMISSIONER SIDNEY LINDEN: We've heard 13 that possible tension from other witnesses and I'm sure-- 14 MR. PETER ROSENTHAL: Yes. Well I'm -- 15 I'm heading to it. We had a suggestion by Scott 16 Hutchison that the Commissioner make a recommendation 17 that in future there be a separate ministry dealing with 18 Native affairs so that there wouldn't be one person 19 wearing both of those hats. 20 And I'm leading up to trying to get some 21 evidence from this witness and get her opinion on whether 22 or not that would be a useful recommendation for you to 23 make, Mr. Commissioner, at the end of the day. 24 And in my respectful submission it was an 25 entirely appropriate question for that purpose.
801 COMMISSIONER SIDNEY LINDEN: Well if you 2 ask her what her experience was with that situation. 3 MS. KIM TWOHIG: Yes, but she was not the 4 Attorney General. The former Attorney General will be 5 testifying and can give evidence about whether or not he 6 thought there was tension in the two (2) roles. 7 COMMISSIONER SIDNEY LINDEN: His 8 perspective is different than hers. I mean, we won't get 9 his perspective on that but -- 10 MS. KIM TWOHIG: Well, my objection 11 stands. Thank you. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. PETER ROSENTHAL: But, with respect, 14 Mr. Commissioner, if we are just to yield to the views of 15 the former Attorney General, this Inquiry should not 16 exist. 17 COMMISSIONER SIDNEY LINDEN: No, no. No, 18 no, we'll get the views of the Attorney General. If this 19 witness observed or experienced -- 20 MR. PETER ROSENTHAL: Yes. 21 COMMISSIONER SIDNEY LINDEN: -- or 22 witnessed any issue with respect to possible tension -- 23 MR. PETER ROSENTHAL: Yes. 24 COMMISSIONER SIDNEY LINDEN: -- that 25 would be something that would be helpful.
811 MR. PETER ROSENTHAL: And I believe that 2 was essentially what I was asking, but I'll try to phrase 3 it more clearly. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: You, in your reporting, did you feel 7 that there was any tension because of the person you were 8 reporting to wearing both of those hats? 9 A: It's a difficult question to answer 10 because there are many situations where people wear 11 multiple hats. Even in any -- in any government, there's 12 the Minister of Justice and the Attorney General and 13 those are two (2) different hats that are of necessity, 14 worn by the same person. 15 One is of prosecutorial and law 16 enforcement function and the other is more of a policy 17 function. So I mean, there's that internal conflict that 18 is inherent in anyone who holds the position of Minister 19 of the Attorney General and Minister of Justice. 20 COMMISSIONER SIDNEY LINDEN: We're not 21 asking for a -- 22 THE WITNESS: No. 23 COMMISSIONER SIDNEY LINDEN: I don't 24 think he's asking for -- 25 THE WITNESS: But I'm just explaining
821 that -- 2 COMMISSIONER SIDNEY LINDEN: Yes. 3 THE WITNESS: -- because it -- it is all 4 inter-related. 5 MR. PETER ROSENTHAL: Yes. 6 THE WITNESS: So -- 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: So, not -- so just wearing two (2) 10 different hats is not necessarily a problem, in general? 11 A: Right. Or at least that's -- I guess 12 I would say that wearing two (2) different hats is not 13 necessarily a problem if you are aware of the two (2) 14 different hats and you think consciously about what 15 positions you need to be taking if you are having this 16 dialogue between the two (2) hats that you're wearing. 17 So, that's -- having said that, then 18 having an additional role as a minister responsible for 19 native affairs presents, you know, another hat that has 20 to be worn, and I guess the issue is, can that be done 21 properly in situations where there is a conflict if the 22 wearer of all of the hats has a high enough degree of 23 awareness of the differing positions or perspectives that 24 he needs to be taking, and is able to bring forward those 25 perspectives in any decision that is being made, or in
831 cabinet, or in discussions ensuring that all of those 2 different roles and interests are properly represented. 3 Q: Yes. 4 A: And probably the more hats you have, 5 the more difficult it is. 6 Q: Yes. Yes, and thank you, that puts 7 it in a good general context. But then I would suggest 8 to you with respect to the -- 9 COMMISSIONER SIDNEY LINDEN: I'm sorry, 10 go on, ask the question. 11 MR. PETER ROSENTHAL: Yes, thank you. 12 COMMISSIONER SIDNEY LINDEN: She wasn't 13 asked for -- for that, but it might be helpful. 14 MR. PETER ROSENTHAL: No, but I think it 15 does, perhaps, put it in a -- a general context that 16 might be useful for all of us to understand. 17 But, in any event, at the end of the day, 18 we'll see how much use it is to you, Mr. Commissioner. 19 20 CONTINUED BY MR. PETER ROSENTHAL: 21 Q: But, then more specifically, with the 22 Native Affairs hat and the Attorney General hat, and 23 especially with issues that would come before the 24 blockade committee, when there's something going on that 25 at least some people would say -- characterize as
841 illegal, and that an Attorney General then must deal 2 with, in his potentially prosecutorial role, that's a 3 particularly difficult separation to make; isn't that 4 fair? 5 A: That would be a situation where there 6 would be a greater conflict that would have to be taken 7 into account. 8 Q: Yes. So would you agree with Mr. 9 Hutchison's suggestion that this Commissioner make a 10 recommendation that, in future, there be a separate 11 Minister of Native Affairs who can wear that hat and be 12 concerned with the welfare of Aboriginal people in this 13 province and not with their prosecution? 14 A: That would probably be desirable. I 15 don't know that it would have made any difference in this 16 situation. 17 Q: No, no, but -- 18 A: And I don't -- and I don't know that 19 -- I don't want to say that -- that those two (2) hats 20 can never be worn and the functions performed 21 independently because, in my view, the key thing is that 22 the wearer of those hats have a consciousness of the fact 23 that he is wearing multiple hats and bring to their -- 24 the appropriate positions and perspectives from each of 25 the ministries that he's representing.
851 Q: Well, is part of your reluctance to 2 think that it might have made a difference in this 3 situation based on your assessment that you've told us 4 that this government had the view that Aboriginal people 5 were not to be given any special rights, as specified in 6 the Constitution. 7 And therefore an Attorney General in this 8 government or Minister of Native Affairs in this 9 government probably would have both had that view and who 10 cares how many hats; is that why you're saying it in this 11 case? 12 COMMISSIONER SIDNEY LINDEN: No, I'm not 13 finding that a useful question at all. The question that 14 we originally asked this Witness was the fact that the 15 Minister wore two (2) hats, did that present any 16 difficulty for you in this situation? Was that a factor 17 in this situation? 18 If that were the question, how would you 19 answer that? 20 THE WITNESS: I don't think that it 21 created any additional difficulty in this situation 22 because the key thing that seemed to have happened in 23 this situation involved the Minister of -- who was both 24 the Attorney General and Minister of Native Affairs being 25 overruled by the Premier.
861 COMMISSIONER SIDNEY LINDEN: That's 2 sufficient in this situation. 3 MR. PETER ROSENTHAL: Yes, so the -- 4 COMMISSIONER SIDNEY LINDEN: All we 5 wanted to know was whether or not that particular wearing 6 of two (2) hats played any part in this situation. 7 MR. PETER ROSENTHAL: Yes, and she's 8 saying the reason it didn't was because it was overruled 9 by the Premier, but -- but there's still -- 10 COMMISSIONER SIDNEY LINDEN: Not the 11 wearing of two (2) hats, the two (2) hats issue where we 12 could have had eight (8) hats, but was -- that's not what 13 the answer -- 14 MR. PETER ROSENTHAL: Yes, but -- exactly 15 but -- but still, Mr. Commissioner, still the suggestion 16 might remain that you might consider recommending a 17 separate ministry -- 18 COMMISSIONER SIDNEY LINDEN: Of course. 19 That suggestion has been made and I -- 20 MR. PETER ROSENTHAL: That's independent 21 of -- of that particular fact that in this case in this 22 Witness' view the Premier's domination would have -- 23 would have meant no difference. 24 COMMISSIONER SIDNEY LINDEN: Well, we 25 note it.
871 MR. PETER ROSENTHAL: Now -- 2 COMMISSIONER SIDNEY LINDEN: That 3 recommendation has been made and I will consider it. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Yes. And -- and so I ask -- I don't 7 even like this phrase but everybody uses it, the bottom 8 line, sort of, on your -- on the recommendation, you 9 think it might be useful to have a separate Minister of 10 Native Affairs in future, in general; not for this 11 particular situation which will never be exactly 12 reproduced, but in general? 13 COMMISSIONER SIDNEY LINDEN: Well, I 14 think this Witness can be asked at the end of the day 15 what her suggestions might be in terms of recommendations 16 like all other witnesses have. I think that would be a 17 useful question to ask. 18 MR. PETER ROSENTHAL: But, I -- can I 19 just conclude this now by asking her that question, sir? 20 COMMISSIONER SIDNEY LINDEN: Well, the 21 recommendation has been made by one (1) witness. 22 MR. PETER ROSENTHAL: Yes, but -- 23 COMMISSIONER SIDNEY LINDEN: I don't want 24 to start asking every witness about their views on other 25 witness' recommendations; that's for me to decide and you
881 can ask her at the end of the day what her 2 recommendations are. She may make this one, she may make 3 others. 4 MR. PETER ROSENTHAL: Well, the end of my 5 day is before the end of her day. I mean you mean I 6 should save it for the -- 7 COMMISSIONER SIDNEY LINDEN: At the end 8 of your examination. 9 MR. PETER ROSENTHAL: At the end of my 10 examination? 11 COMMISSIONER SIDNEY LINDEN: You might 12 ask her. 13 MR. PETER ROSENTHAL: I will. 14 MR. DERRY MILLAR: If she has any 15 additional recommendations. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. DERRY MILLAR: She was asked this 18 question in-chief about her recommendations. 19 COMMISSIONER SIDNEY LINDEN: She was 20 already. You could ask her if she had any additional 21 recommendations, and in view of your cross-examination 22 she may have. 23 MR. PETER ROSENTHAL: Okay. I'll try to 24 remember to return this -- to this at the end of my 25 examination.
891 COMMISSIONER SIDNEY LINDEN: I mean I 2 don't want to get into a debate about one (1) witness' 3 view of another witness' recommendations. 4 MR. PETER ROSENTHAL: No, no. No, I was 5 simply going to ask her would she, on balance, support 6 the recommendation that there be a separate minister in 7 future, that's all, and then I was going to leave the 8 topic. 9 COMMISSIONER SIDNEY LINDEN: It doesn't 10 make a lot of difference if you ask it now or later, but 11 I prefer that you ask it later. 12 MR. PETER ROSENTHAL: Certainly. 13 THE WITNESS: Perhaps a break now? 14 COMMISSIONER SIDNEY LINDEN: Yes, I'm 15 sorry. The Witness is asking for a break now. 16 MR. PETER ROSENTHAL: Oh, I'm sorry. 17 COMMISSIONER SIDNEY LINDEN: We'll take a 18 break now. 19 THE REGISTRAR: This Inquiry will recess 20 for fifteen (15) minutes. 21 22 --- Upon recessing at 10:24 a.m. 23 --- Upon resuming at 10:43 a.m. 24 25 THE REGISTRAR: This Inquiry is now
901 resumed, please be seated. 2 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 3 Rosenthal? 4 MR. PETER ROSENTHAL: Thank you, Mr. 5 Commissioner. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Thank you, Ms. Jai. I feel very bad 9 keeping you here when you're in obviously -- 10 A: No, no, that's fine. 11 Q: I'm sorry, but it's the only 12 opportunity I have. 13 A: Yes. 14 Q: If we could please turn to Tab 29. 15 And I think -- the only documents I'll be referring to I 16 think are in Volume I of the Commissioner's Brief. 17 A: Okay. 18 Q: There may be one from Volume II. At 19 Tab 29 thereof, we have Exhibit P-653, Document Number 20 101762 which is an e-mail that you sent to Mr. Lazor on 21 Wednesday, September 6th at approximately 12:44 p.m., 22 right? 23 A: Correct. 24 Q: And you begin by saying that: 25 "Ministry of Attorney General staff and
911 I met with Larry Taman this morning and 2 Larry and I briefly met with the 3 Minister to discuss the Ipperwash 4 occupation." 5 And the Minister then was the Attorney 6 General? 7 A: Yes. 8 Q: And then you write: 9 "The agreed upon direction from the 10 Minister and Deputy (following a 11 discussion between the Minister and the 12 Premier)." 13 I want to focus on the parenthetical 14 remark for a moment. 15 A: Hmm hmm. 16 Q: I believe you told us that -- that 17 probably, you may not be absolutely certain ten (10) 18 years later, but the Minister left the room at some point 19 during your briefing to speak to the Premier and then 20 returned to rejoin your meeting. 21 Is that your collection or your -- or your 22 guess? 23 A: As I said, I couldn't -- I can't 24 actually remember how this occurred. 25 Q: Right.
921 A: But, that is one possible scenario. 2 Q: Right. But in any event you did at 3 the time know -- 4 A: Yes. 5 Q: -- and know now -- didn't know why, 6 but now -- well you do know for sure that there was some 7 discussion between the Minister and the Premier? 8 A: Yes. 9 Q: And you told us earlier today about 10 the Premier directing things. Did -- from your 11 observation and your -- in your participation in these 12 September 5th meetings, September 6th meeting, and this 13 meeting, is it not correct that it appeared that whatever 14 was discussed at those meetings, whatever concerns there 15 were back and forth and so on, would not necessarily 16 prevail because the Premier seemed to just override 17 things? 18 A: Yes. 19 Q: Now, in particular, there was the 20 question of whether an injunction should be ex parte or a 21 normal injunction perhaps with abbreviated notice 22 provided. 23 A: Yes. 24 Q: And, as I understand your evidence 25 and read your notes and so on, Tim McCabe was the most
931 expert person with respect to injunctions who 2 participated in the Interministerial Committee meetings, 3 right? 4 A: Right. 5 Q: And it was his view, as expressed in 6 those meetings, that they were not the grounds for an ex 7 parte injunction, right? 8 A: Correct. 9 Q: And am I correct that he explained 10 that, as part of at least of the basis for that opinion, 11 the fact that there didn't seem to be such an emergency. 12 The Park was closed and it wasn't disrupting anything 13 terribly and so on; is that fair? 14 A: Yes. 15 Q: Nonetheless, we know that eventually 16 an ex parte injunction was applied for. 17 A: Yes. 18 Q: And was it your understanding that 19 that was because of the specific direction of the 20 Premier? 21 A: Yes. 22 Q: Now Tim McCabe was working under your 23 supervision; is that correct? 24 A: Not really. 25 Q: I see.
941 A: I mean he was senior counsel, so he 2 worked independently. 3 Q: I see. Okay. Well, did you -- he 4 then went onto prepare, we understand, or at least -- 5 A: Yes. 6 Q: -- to play a large role in preparing 7 that injunction application. 8 A: Yes. 9 Q: Did you discuss with him at all at 10 the time or sometime thereafter, how he could apply for 11 an ex parte injunction when he had told your Committee 12 there were not grounds for such? 13 A: I don't recall having that discussion 14 with him. But, I would just would expect that once he 15 got the direction to apply for ex parte, he would just do 16 it to the best of his ability. And he may have gotten 17 that directly from Larry Taman, the Deputy Minister who 18 is at the meeting the afternoon of September 6th in which 19 the Premier and Harnick were present. 20 And it appears that it was at that meeting 21 that the direction was given to change from a normal 22 injunction to an ex parte injunction. 23 Q: Yes. Thank you. Now, continuing 24 with this document then, your e-mail of September 6th, 25 about the middle of the page there's a heading, "main
951 communications messages will be...". 2 And by 'communications messages' that 3 means what will be released to the press and to the 4 public; is that correct? 5 A: It would be the things the Ministers 6 would communicate if they were scrummed or if they were 7 giving a press conference or if there was any sort of 8 communications with the media. 9 Q: Yes. And so the first of those is 10 that the AG has been instructed to seek an injunction as 11 soon as possible? 12 A: Yes. 13 Q: The second is that the police have 14 been asked to remove the occupiers from the Park? 15 A: Yes. 16 Q: Now, stopping on that for a moment. 17 What channels are you aware of that went from the 18 Government to the police to affect the content of that 19 message? 20 In other words, in what ways were the 21 police informed that the Government wanted them to remove 22 the occupiers from the Park? 23 A: Well, the only way that I know of 24 would have been that Ron Fox would communicate with John 25 Carson or the other, you know, whoever was the acting
961 Incident Commander. 2 That's what I was aware of. I don't know 3 what other communications there may have been to the 4 police. 5 Q: Okay. Thank you. And then the third 6 main communication message, according to this e-mail, is 7 public safety and removing the trespassers from the Park 8 are the key objectives, right? 9 A: Yes. 10 Q: Now then there's a parenthetical 11 remark. 12 "It was agreed at the meeting after 13 much discussion..." 14 Now, when you say 'meeting' -- 15 A: This is the -- 16 Q: -- you're referring to the 17 Interministerial Committee -- 18 A: Interministerial Committee meeting. 19 All of this -- the discussion in this note from, like the 20 bottom three-quarters (3/4's) of the page down is all 21 from the Interministerial Committee meeting. 22 Q: Yes, sorry. Yes, I should have 23 clarified that -- 24 A: Hmm hmm. 25 Q: -- that your e-mail makes that clear.
971 A: Yes. 2 Q: After talking about your meeting with 3 the Attorney General you then summarise the emergency 4 meeting -- the Interministerial Emergencies Committee 5 meeting from that morning. 6 A: Right. 7 Q: And this is in that summary. Now, 8 continuing then: 9 "It was agreed after much discussion 10 that the Government cannot direct the 11 OPP to lay charges. And although it 12 can request that they remove the 13 occupiers, how and when they do so is a 14 matter of police discretion." 15 Now, you've told us you were not aware of 16 what channels of request -- that request may have gone 17 through, other than Ron Fox? 18 A: Right. 19 Q: And then that sentence continues: 20 "It was also agreed that the OPP on the 21 ground are in the best position to 22 assess the risk and determine when and 23 how to act." 24 Now, how and when they do so is a matter 25 of police discretion. The way it's worded, it suggests,
981 I would suggest, that it's assumed that they will honour 2 that request to remove the trespassers, the occupiers, 3 although how and when they will do it is up to them. 4 Is that a fair reading? 5 A: I suppose that you're suggesting that 6 it could have said, If how and when they do so is -- 7 Q: Yes. 8 A: -- a matter of police discretion. 9 And it did not -- does not say that. 10 Q: Yes. 11 A: I wouldn't read too much into that. 12 I think that the general meaning was that it is a matter 13 of police discretion as to what to do on the ground. 14 Q: Well, it was -- it was known that the 15 Government could not order the police -- 16 A: Right. 17 Q: -- to do that. 18 A: Right. 19 Q: They could just make the request, 20 right? 21 A: Yes. 22 Q: But I would put it to you that this 23 sentence suggests it was assumed that request would be 24 honoured; is that not fair? 25
991 (BRIEF PAUSE) 2 3 COMMISSIONER SIDNEY LINDEN: She's -- 4 yes, Mr. Downard? 5 MR. PETER DOWNARD: Whatever this witness 6 may have assumed at the time is a fair question for this 7 witness. What other people assume is not something she 8 can speak to. 9 COMMISSIONER SIDNEY LINDEN: Yes. She's 10 already -- 11 MR. PETER ROSENTHAL: I asked her what -- 12 this -- her sentence that she wrote. 13 COMMISSIONER SIDNEY LINDEN: Yes, I -- 14 MR. PETER ROSENTHAL: And I'm asking her 15 about the meaning of this sentence. 16 COMMISSIONER SIDNEY LINDEN: You did and 17 she said not to put too much emphasis on it. 18 MR. PETER ROSENTHAL: She said not too 19 much, but then I'm asking her am I correct, nonetheless, 20 in my interpretation that it -- that the phrasing of -- 21 COMMISSIONER SIDNEY LINDEN: What she 22 meant -- 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: The phrasing of this sentence that
1001 you wrote, suggests, does it not, not maybe absolutely 2 100 percent sure, but it suggests an assumption that the 3 request will be honoured and -- but the question of how 4 and when you do it, that's up to you, but there was an 5 expectation that this request would be honoured; isn't 6 that fair? 7 A: It could be interpreted that way, 8 yes. 9 Q: Now, I would suggest to you that the 10 Interministerial Committee Meeting was told by Scott 11 Hutchison, the Government does not have the authority to 12 direct the police, right? But you can make a request? 13 And then what was done was what we see 14 here, not only that a request was made but there was 15 going to be a public announcement of the fact that the 16 police had been asked to remove the occupiers from the 17 Park. 18 I'm suggesting to you, that upon 19 reflection now, it's clear that that was -- there's not 20 an absolute demand of the OPP, extraordinary pressure on 21 the OPP to comply with that request; isn't that fair? 22 MR. DERRY MILLAR: Well, she can't answer 23 that question. You know, he can ask her what she knows-- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. DERRY MILLAR: -- what she did, what
1011 she understood. 2 MR. PETER ROSENTHAL: Well -- 3 COMMISSIONER SIDNEY LINDEN: OPP officers 4 or officials to be asked how much pressure was put on 5 them. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Perhaps I could ask a different 9 question. As you think back now knowing everything that 10 happened, and there's you -- I -- I know you, in 11 preparation for this Inquiry have read over some of these 12 document and so on. I also know it's ten (10) years ago 13 and we all appreciate that and you may not remember it. 14 But I'm suggesting to you that looking 15 over all this information one might get the following 16 impression. 17 And you as a participant who knew a lot of 18 it, I'd like to know your reaction to that impression, 19 that it was a very fine line, hair-splitting 20 terminological distinction being made between demanding 21 and asking the police. But publicly saying the police 22 have been asked to remove them and informing them there's 23 a mischief charge that applies. And saying, How and when 24 you do it is up to you, is very close to a demand that 25 they do it?
1021 COMMISSIONER SIDNEY LINDEN: Your 2 question is that one could draw that inference from the 3 material? 4 MR. PETER ROSENTHAL: Yes, and -- 5 COMMISSIONER SIDNEY LINDEN: Is that your 6 question? 7 MR. PETER ROSENTHAL: My question is, 8 you, from your vantage point and you have a very special 9 vantage point, when you think back on it now isn't that a 10 fair conclusion that there was just a fine line, hair- 11 splitting distinction being drawn in phrasing -- 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MR. PETER ROSENTHAL: -- that they wanted 14 to accomplish the goal of getting the police to act? 15 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 16 Perschy? Yes, Ms. Perschy's got it. 17 OBJ MS. ANNA PERSCHY: My -- my objection to 18 the question is that it has seen some evidence that I 19 don't believe has been put to this Inquiry, namely that 20 the OPP was advised, some how through this Committee, of 21 the sections of the Criminal Code that applied, namely 22 the mischief charge. And I don't believe there's been any 23 evidence to that effect. 24 In fact, Scott Hutchison's evidence was 25 that the reason he provide this -- this briefing to the
1031 Committee was simply to explain to the Committee what was 2 the backdrop of the Criminal Code and -- and whether or 3 not any offences appeared to be constituted based on the 4 facts that were before the Committee. So, he's included 5 in his question evidence that simply isn't there. 6 MR. PETER ROSENTHAL: Well, perhaps I 7 should -- 8 MS. ANNA PERSCHY: Apart from -- quite 9 apart from the fact -- this is my second objection -- 10 that with all due respect I'm not sure it's helpful to 11 you to hear evidence as to, you know, what one could 12 possibly infer from -- from -- from the -- the question 13 that this Witness has put to this Witness. She's -- 14 she's not in any position to be able to provide you with 15 a helpful answer on this. 16 COMMISSIONER SIDNEY LINDEN: Yes. 17 MR. PETER ROSENTHAL: Mr. Commissioner, 18 My Friend is quite wrong. If she would read further in 19 the document that we have open, it doesn't say it was 20 necessarily done, but it says it will be done. It says 21 at -- toward -- toward the bottom of that parenthetical 22 remark it says as follows: 23 "The OPP will be advised as to their 24 legal options, such as the mischief 25 charge under the Criminal Code, and
1041 then it's up to them as to how to 2 proceed." 3 So, it does indicate that the OPP would be 4 specifically advised of the possibility of a mischief 5 charge, and one wonders why someone is saying you have to 6 tell the OPP that there was a possibility of a mischief 7 charge, if it's not to add to the pressure on them to do 8 something. 9 COMMISSIONER SIDNEY LINDEN: Well, you 10 started to make -- 11 MR. DERRY MILLAR: Yes. 12 COMMISSIONER SIDNEY LINDEN: -- an 13 argument. You started to make argument, Mr. Rosenthal. 14 MR. DERRY MILLAR: Yeah. What is -- 15 instead of arguing with you when the witness is in the 16 box, why doesn't My Friend simply ask the witness what 17 did you intend by the statement? 18 What did you intend by this -- what you've 19 set out in this document? 20 You, the witness, not -- 21 COMMISSIONER SIDNEY LINDEN: And save -- 22 MR. DERRY MILLAR: -- what the world -- 23 COMMISSIONER SIDNEY LINDEN: -- save the 24 rest for argument. 25 MR. DERRY MILLAR: Yeah.
1051 COMMISSIONER SIDNEY LINDEN: I think 2 that's a way to proceed, Mr. Rosenthal. 3 MR. PETER ROSENTHAL: I'm not sure... 4 COMMISSIONER SIDNEY LINDEN: What did she 5 intend -- 6 MR. PETER ROSENTHAL: I -- 7 COMMISSIONER SIDNEY LINDEN: -- this. 8 MR. PETER ROSENTHAL: What did she intend 9 in what respect? I mean we have -- 10 COMMISSIONER SIDNEY LINDEN: Well -- 11 MR. PETER ROSENTHAL: Obviously there are 12 different intentions at -- in various people's minds on 13 September 5 and 6. 14 COMMISSIONER SIDNEY LINDEN: Well, you've 15 got this Witness on the stand. This is the Witness who's 16 intentions -- 17 MR. PETER ROSENTHAL: Yes. 18 COMMISSIONER SIDNEY LINDEN: -- we're 19 interested in now. 20 MR. PETER ROSENTHAL: And I -- I don't 21 question her intentions, frankly, Mr. Commissioner. I 22 question the intentions of some other people and I'm 23 trying to find out information about what the other 24 people did -- 25 COMMISSIONER SIDNEY LINDEN: Well --
1061 MR. PETER ROSENTHAL: -- by asking this 2 witness questions about what happened. 3 MR. DERRY MILLAR: Well -- but, he can 4 ask -- I have no objection to My Friend asking this 5 Witness what other people did in her -- 6 COMMISSIONER SIDNEY LINDEN: That she 7 knows about. 8 MR. DERRY MILLAR: -- presence. 9 COMMISSIONER SIDNEY LINDEN: That she 10 knows about. 11 MR. DERRY MILLAR: That she knows about, 12 as he has already done without -- 13 COMMISSIONER SIDNEY LINDEN: Yes. 14 MR. DERRY MILLAR: -- any objection. 15 COMMISSIONER SIDNEY LINDEN: Yes. 16 MR. DERRY MILLAR: What he -- what I 17 object -- 18 MR. PETER ROSENTHAL: Some objection. 19 MR. DERRY MILLAR: -- with what I -- the 20 objection is what he's trying to ask her now is what did 21 other people intend -- 22 COMMISSIONER SIDNEY LINDEN: Or might 23 have intended. 24 MR. DERRY MILLAR: Or might have 25 intended. And this witness can't answer that.
1071 COMMISSIONER SIDNEY LINDEN: I agree with 2 that. So, Mr. Rosenthal, I'm not sure how we can -- 3 MR. PETER ROSENTHAL: I'm going to move 4 on, if I may, Mr. Commissioner. 5 COMMISSIONER SIDNEY LINDEN: That's fine. 6 MR. PETER ROSENTHAL: I'm mindful of the 7 time, of the Witness' health problem. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: The OPP will be advised as to their 11 legal options such as a mischief charge. Did anybody 12 give an indication as to why anyone would think the 13 Government should tell the OPP there's a mischief charge 14 under the Criminal Code? 15 A: Well, it was something that wasn't 16 immediately apparent to the members of the Committee. I 17 mean we didn't, ourselves, know on the meeting -- at the 18 meeting of September 5th and there are, you know, a 19 number of lawyers and Ron Fox and others were there. 20 So, it was only after the discussion with 21 Scott Hutchinson that we realized that this was a charge 22 who's elements could potentially be proven -- 23 Q: Yes. 24 A: -- in the circumstances of the case. 25 So, since it wasn't -- seems like -- that clear to us,
1081 it's possible that it wouldn't have been that clear to 2 the OPP either and we wanted to give them the benefit of 3 the work that Scott had done. 4 Q: Is that your personal view, that it 5 might not have been that clear to the OPP that there's a 6 mischief charge that has those elements? 7 Or did someone express that view to you? 8 A: No, no one has expressed that view. 9 10 (BRIEF PAUSE) 11 12 Q: Now, it says: 13 "The OPP will be advised as to their 14 legal options such as the mischief 15 charge under the Criminal Code and then 16 it's up to them as to how to proceed." 17 You don't know who did that advising, do 18 you? 19 A: I don't know who did that, other than 20 what -- Ron Fox but there may have been others. 21 COMMISSIONER SIDNEY LINDEN: You've 22 already asked that. I think you asked that question and 23 I think she's already given you that answer. 24 MR. PETER ROSENTHAL: It was a slightly 25 different question.
1091 COMMISSIONER SIDNEY LINDEN: Was it? 2 Okay. 3 MR. PETER ROSENTHAL: It was -- it was 4 about the OPP wanting them removed from the Park, but -- 5 COMMISSIONER SIDNEY LINDEN: All right. 6 MR. PETER ROSENTHAL: -- I just wanted to 7 clarify that. I -- 8 COMMISSIONER SIDNEY LINDEN: Right. 9 10 (BRIEF PAUSE) 11 12 CONTINUED BY MR. PETER ROSENTHAL: 13 Q: Now, could you please turn to your 14 Tab 27. 15 16 (BRIEF PAUSE) 17 18 Q: At Tab 27, there's Exhibit P-515 to 19 these proceedings which is Inquiry Document 3001088. And 20 these are notes that you took, I gather, of a phone call 21 that you had with Ron Fox on September 6th, 1995; is that 22 correct? 23 A: Yes. 24 Q: You were asked by Ms. Tuck-Jackson, 25 Counsel to the OPP, about the second bullet point there:
1101 "Now OPP Commissioner is involved, 2 decisions will be made at his level." 3 A: Yes. 4 Q: And in answer to her you said you 5 were quite sure you got it correct when you took your 6 notes. 7 A: Yes. 8 Q: And the -- 9 OBJ COMMISSIONER SIDNEY LINDEN: Excuse me. 10 Ms. Tuck-Jackson has an objection. 11 MS. ANDREA TUCK-JACKSON: With great 12 respect, Mr. Commissioner, the witness' evidence was that 13 she -- she at the time did have a good understanding but 14 it's possible that she did make an error. And that was 15 her evidence. 16 COMMISSIONER SIDNEY LINDEN: Well that 17 was -- my recollection of her evidence was that came 18 after in the questioning. So you may want to read that. 19 This becomes -- 20 MR. PETER ROSENTHAL: Perhaps we'll have 21 to turn up her evidence. 22 COMMISSIONER SIDNEY LINDEN: I think so 23 on this point if that's what you're going to -- 24 MR. PETER ROSENTHAL: Did you want to 25 look up hers, Commissioner?
1111 COMMISSIONER SIDNEY LINDEN: Do we have 2 it handy? I think that it's important that is be 3 accurate. 4 MR. PETER ROSENTHAL: Mr. Millar is 5 always very good. 6 COMMISSIONER SIDNEY LINDEN: This is not 7 a splitting of hairs. This may be an important point. 8 MR. DERRY MILLAR: What are we looking 9 for? What -- 10 MR. PETER ROSENTHAL: We're looking for 11 Ms. Jai's testimony with respect to a document from Ron 12 Fox about the Commissioner. And she -- part of her 13 answer included the word "O'Grady," so if you want to do 14 a search for O'Grady. 15 COMMISSIONER SIDNEY LINDEN: I recall 16 that -- 17 MR. PETER ROSENTHAL: Because I was going 18 to follow up and ask about that as well. 19 THE WITNESS: Okay. 20 21 (BRIEF PAUSE) 22 23 MR. PETER ROSENTHAL: While he's looking 24 for that, I was really surprised how he found the 25 reference yesterday so quickly. He's really very good.
1121 MR. DERRY MILLAR: Now the question was, 2 if it's the right question. 3 "My point -- my point, Ms. Jai, is as 4 follows, is it possible -- 5 COMMISSIONER SIDNEY LINDEN: Sit down, 6 Mr. Millar, so I can read it. 7 MR. DERRY MILLAR: "Is -- is it possible 8 that in a conversation Mr. Fox may have 9 used the word 'Chief' for example and 10 you assumed that he was referring to 11 the Commissioner. 12 A: It's possible but unlikely because 13 I do have an understanding of who the 14 OPP Commissioner was. That would have 15 been O'Grady and I guess I feel that -- 16 that if I wrote that, that is what -- 17 what I understood at the time. 18 Q: All right. 19 A: I could have been confused or 20 mistaken -- mistaken, but that was my 21 understanding at the time." 22 COMMISSIONER SIDNEY LINDEN: Is that 23 fair, Ms. Tuck-Jackson? 24 MS. ANDREA TUCK-JACKSON: It is, sir, 25 thank you.
1131 MR. PETER ROSENTHAL: It is and I think 2 my conversation was quite fair. I said, "You were quite 3 sure," and that -- there's slightly different phrasing 4 but I think that's a fair characterization. 5 6 CONTINUED BY MR. PETER ROSENTHAL: 7 Q: In any event, are you quite sure -- 8 quite sure, not absolutely certain, that you wrote 9 accurately, "Commissioner?" 10 A: Yes. 11 Q: Sorry? 12 A: Yes. I -- I believe that that was 13 what Ron Fox told me. That it was the OPP Commissioner-- 14 Q: Yes. 15 A: -- who was involved -- 16 Q: And then you went on to -- I'm sorry. 17 A: -- who was involved at that decisions 18 would be made at his level. 19 Q: Right. 20 A: And subsequent to this, like in the 21 days after September the 7th there were -- when things 22 had moved to this nerve centre with the deputy ministers, 23 there -- I recall that there were situations where 24 O'Grady, the Commissioner, was directly involved. 25 Q: I see.
1141 A: So that that would confirm my 2 understanding that he had begun to be involved in this. 3 Q: Now you indicated that you knew the 4 name O'Grady, do you recall when you first learned about 5 him? Would it have been on or about September 5 or 6 or 6 had you -- did you know of him prior to that? 7 A: I probably knew prior to, but I can't 8 recall how I -- 9 Q: Yes of course. 10 A: -- first came to know about his name. 11 Q: Certainly. And from your vantage 12 point, first dealing with the time up until September 6th 13 let's say, were you aware of involvements by him? 14 A: By O'Grady? 15 Q: Yes. 16 A: I -- I was not. 17 Q: You were not. But then you began to 18 indicate that afterward you were involved with -- or you 19 were aware of his involvement? 20 A: Yes. 21 Q: Can you recall the -- and I 22 appreciate it's ten (10) years later, but can you give us 23 some indication as to when you first became aware of his 24 involvement and what the nature of that involvement was? 25 A: Well I think it would have been on
1151 September 7th or very soon thereafter that he was 2 involved in meetings that the key deputies were involved 3 in. 4 Q: And did you yourself meet with him at 5 all? 6 A: No. 7 Q: I see. 8 9 (BRIEF PAUSE) 10 11 Q: Now when you took notes of this phone 12 call with Ron Fox, you didn't write down every word he 13 said, obviously. 14 A: Right. 15 Q: Do you recall whether he gave you any 16 indications beyond what's written here as to the nature 17 of any decisions that the Commissioner would be involved 18 in? 19 A: I can't recall. 20 Q: Thank you. Now, if you could please 21 look at Tab 10 of the Commission documents, and I don't 22 believe it has an Inquiry Document Number, but it's 23 Exhibit P-644. 24 25 (BRIEF PAUSE)
1161 Q: These are your telephone logs? 2 A: Yes. 3 Q: And I should like to ask you about 4 something on the very last page thereof. 5 6 (BRIEF PAUSE) 7 8 Q: What appears to be the next to last 9 entry is a name, "Merike?" 10 A: Yes. 11 Q: Who is that? 12 A: Merike, I believe her last name was 13 Poor. She was an employee of ONAS. 14 Q: I see. And then next to that entry 15 it says, if I read it correctly: 16 "1926 surrender illegal"? 17 A: Yes. 18 Q: That -- I am reading it correctly? 19 A: That's what it says. 20 Q: And can you tell us what that 21 referred to? 22 A: I can't recall. All I know is that 23 because -- we have further notation, there's just a line 24 rather than a check mark -- 25 Q: Right.
1171 A: So, that means that I probably had a 2 discussion with her or something. In other words, it was 3 not necessary to return the call, which is what a check 4 mark would mean, because I had dealt with it in some 5 other manner. 6 So, possibly had a discussion with her or 7 referred the call to someone else, or in someway dealt 8 with it, but I can't recall what it was about, just that 9 she had left a message about this and in some way I had 10 taken action on it, but I don't recall what that action 11 was. 12 Q: Well, did -- can you assist us? Did 13 this refer to an allegation that the surrender of a 14 portion of the Stoney Point reserve in the 1920's had 15 been illegal? 16 MR. DERRY MILLAR: She -- 17 COMMISSIONER SIDNEY LINDEN: She said she 18 can't recall. 19 MR. DERRY MILLAR: She said in-chief when 20 I asked her the very same question, that she couldn't 21 recall and -- 22 COMMISSIONER SIDNEY LINDEN: Yes. 23 MR. DERRY MILLAR: -- she said again she 24 can't recall. 25 COMMISSIONER SIDNEY LINDEN: Is there
1181 anything -- 2 MR. PETER ROSENTHAL: She didn't quite 3 get to say she can't recall this time, I don't think, 4 because My Friend stood up. 5 COMMISSIONER SIDNEY LINDEN: Well -- 6 MR. PETER ROSENTHAL: But I might have 7 missed that in-chief, and it's not necessary for him to 8 stand up. She could say that again. 9 COMMISSIONER SIDNEY LINDEN: Well -- 10 MR. PETER ROSENTHAL: In my respectful 11 submission. In any event, I'll move on. 12 COMMISSIONER SIDNEY LINDEN: I think she 13 said she couldn't recall, anyway. 14 15 (BRIEF PAUSE) 16 17 CONTINUED BY MR. PETER ROSENTHAL: 18 Q: Now, you may have been asked but I 19 just want to be sure. Was there any discussion at all 20 that you recall, of the possibility that the surrender of 21 part of Stoney Point reserve in the 1920's was illegal? 22 A: I can't recall any exact discussion 23 of that, but I believe that I, at least, and perhaps 24 others, would have been aware of that -- the possibility 25 that the surrenders could be challenged and that's why
1191 the decision of Killeen J. was even relevant, because in 2 -- it would be a similar kind of situation. So -- 3 Q: Right. 4 A: -- if we hadn't been aware at some 5 level that the surrender itself might be attacked then we 6 wouldn't have looked to the Decision of Killeen J. as 7 being reassuring. 8 Q: I see. 9 A: If we already had 100 percent 10 confidence in the surrender. 11 Q: I see, so there might have been some 12 notion that you can't now put your finger on as to -- 13 A: Right. 14 Q: -- where it emanated. 15 A: Yes. 16 Q: That -- of a possibility of the 17 illegal -- legality of the surrender? 18 A: Yes. 19 Q: And that would have been one reason 20 that it was pursued in the way you just told us? 21 A: Yes. 22 23 (BRIEF PAUSE) 24 25 A: Having worked, just to follow up, I
1201 mean having worked in the Native Affairs Secretariat, I 2 was aware that many surrenders, once you looked into 3 them, that there were irregularities. 4 I mean, that was the basis for many of the 5 land claims which we were dealing with. 6 Q: Yes. So in addition to the 7 likelihood that there was that concept floating around of 8 the possibility in this case you were aware, and some of 9 your colleagues were aware, that many surrenders over the 10 years have been -- have had some questionable aspects to 11 them? 12 A: Yes. 13 Q: Now, if you could turn, please, to 14 Tab 45 of your -- of the Commissioner's brief, which is 15 Exhibit P-516, Inquiry Document Number 1012542, and this 16 appears to be your notes of a telephone call from Ron Fox 17 at 6:20 a.m. on Thursday, September 7; is that correct? 18 A: Yes. 19 Q: And one (1) of the things you wrote 20 there is -- tell me if I'm reading it correctly: 21 "Deb Hutton doesn't think much of the 22 Interministerial Group." 23 Was that correct? 24 A: Yes. 25 Q: I want to ask you what the
1211 Interministerial group thought of Deb Hutton, but do you 2 recall any more about what Mr. Fox was telling you there? 3 A: Well -- 4 Q: In what sense did she -- did she not 5 think much of the Interministerial Group? 6 A: I think that Ron was venting a little 7 bit. I mean he was clearly upset that somebody had been 8 shot and he was describing, first of all, some of the 9 circumstances as he understood them at that time of the 10 shooting and then he was also just talking about the fact 11 that -- and I think this was just further venting about 12 the -- the criticisms that had been directed at the 13 Interministerial group and the OPP. 14 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 15 Downard...? 16 MR. PETER DOWNARD: Whether Inspector Fox 17 is venting or not is for him to say, it's not for this 18 Witness to be describing his state of mind which is what 19 -- which is what the Witness is doing. 20 COMMISSIONER SIDNEY LINDEN: She was 21 speaking to him. Is that not what this is? 22 THE WITNESS: Yeah. I did speak to him. 23 But this is what -- 24 MR. PETER DOWNARD: I understood she 25 spoke to him, but -- but to say that he's venting, apart
1221 from it being very similar to something we've heard on 2 another occasion, to say that he is venting is a 3 description of his state of mind which she can't give. 4 COMMISSIONER SIDNEY LINDEN: All right. 5 She can't give his state of mind, that's fair. 6 THE WITNESS: Okay. 7 MR. PETER ROSENTHAL: It's apparent, Mr. 8 Commissioner, that this Witness is telling us what she 9 got from this conversation. 10 COMMISSIONER SIDNEY LINDEN: What she 11 thought was happening. 12 MR. PETER ROSENTHAL: And any 13 characterization she gives is her characterization. 14 COMMISSIONER SIDNEY LINDEN: We want to 15 be careful. 16 Yes, Mr. Millar...? 17 MR. DERRY MILLAR: I think that what the 18 -- I agree with Mr. Rosenthal that the Witness can say 19 what she observed of the demeanour of Mr. Fox. Now she 20 can't say what was his state of mind, but she can -- 21 COMMISSIONER SIDNEY LINDEN: No. 22 MR. DERRY MILLAR: -- describe his 23 demeanour. 24 MR. PETER ROSENTHAL: I agree. 25 THE WITNESS: Yeah.
1231 COMMISSIONER SIDNEY LINDEN: Yeah. And 2 in a telephone conversation she can't see him. 3 MR. DERRY MILLAR: But his voice -- 4 COMMISSIONER SIDNEY LINDEN: She can 5 describe what she thought she was hearing. 6 MR. PETER ROSENTHAL: And, Mr. 7 Commissioner, objections so-called of this type, are not 8 helpful to the time or the process. 9 COMMISSIONER SIDNEY LINDEN: That's the 10 joy of having twenty-five (25) lawyers in the room every 11 day. 12 THE WITNESS: So ,I'll just try to keep 13 it to what I heard and I -- I mean Ron was somebody I 14 spoke with on a daily basis -- 15 MR. PETER ROSENTHAL: Yes. 16 THE WITNESS: -- so I know Ron -- at that 17 time I knew him quite well and he was clearly very upset. 18 He was very upset when he called me the first time -- 19 MR. PETER ROSENTHAL: Yes. 20 THE WITNESS: -- at like 4:15 a.m. in the 21 middle of the night because it's extremely upsetting for 22 anyone when somebody is killed. And then he called me 23 again at 6:20 to provide more details. 24 MR. PETER ROSENTHAL: Right. 25 THE WITNESS: And just to kind of discuss
1241 like next steps and it was at that point that he told me 2 that Deb Hutton had expressed very neg -- you know, had 3 been very critical of the Interministerial Committee. 4 5 CONTINUED BY MR. PETER ROSENTHAL: 6 Q: Now did he tell you how he became of 7 aware of it? Did she say that to him, did he report, do 8 you recall or did she say it to someone else in his 9 presence or? 10 A: I -- I can't recall. 11 Q: Now this is after Dudley George had 12 been killed? 13 A: Yes. I mean the -- what the -- what 14 he was conveying to me when he said that was that Deb 15 Hutton felt that we were not handling the situation well, 16 that the Interministerial Committee was not doing a good 17 job. 18 Q: Oh, I see. 19 OBJ COMMISSIONER SIDNEY LINDEN: Surprise, we 20 have an objection from Ms. Perschy. 21 Yes, Ms. Perschy...? 22 MS. ANNA PERSCHY: My only concern at 23 this point -- my objection of course is that now we're 24 hearing from this Witness as to what some other witness 25 told her about a third person's feelings.
1251 COMMISSIONER SIDNEY LINDEN: Right. 2 MS. ANNA PERSCHY: And of course only the 3 individual involved can speak as to their own feelings. 4 And that -- that's the basis of that. 5 COMMISSIONER SIDNEY LINDEN: She's 6 describing what she was told. I don't have a difficulty 7 with that as this point. Let's carry on. 8 9 CONTINUED BY MR. PETER ROSENTHAL: 10 Q: Sorry. These interruptions do have 11 an affect of destroying the flow. Now, so he had either 12 heard her say -- you got the understanding that he had 13 either heard her say or had -- it had been reported to 14 him that she had said something negative about the 15 Interministerial -- 16 A: Yes. 17 Q: -- group, at least. 18 A: Yes. 19 Q: Was there -- can you try to recall 20 and I know it's many years later, but was there any 21 connection in the discussion between you and Inspector 22 Fox between the feeling that she didn't think much of the 23 Interministerial group and the fact that this tragedy had 24 occurred -- the killing? 25 In other words that perhaps that the --
1261 her lack of response to the Interministerial group had 2 contributed to this tragedy taking place? 3 COMMISSIONER SIDNEY LINDEN: I think 4 you've gone a little too far, Mr. Rosenthal. 5 MR. PETER ROSENTHAL: With respect, Mr. 6 Commissioner, this -- 7 COMMISSIONER SIDNEY LINDEN: No, I don't 8 think you -- 9 MR. PETER ROSENTHAL: -- cross- 10 examination ten (10) years later -- 11 COMMISSIONER SIDNEY LINDEN: This is 12 cross-examination but that's not a proper cross- 13 examination. So I don't think that's a good question at 14 all. 15 MR. PETER ROSENTHAL: With respect, I'm 16 trying to jog this witness' memory about the possible 17 reasons that this -- that this sentence might have 18 occurred in her notes. 19 COMMISSIONER SIDNEY LINDEN: Well I'm -- 20 21 CONTINUED BY MR. PETER ROSENTHAL: 22 Q: Well, may I ask was there any -- can 23 you try to recall, was there any connection between this 24 allegation and the tragedy that had unfolded? 25 COMMISSIONER SIDNEY LINDEN: Well again,
1271 I don't see how she could know that or. 2 THE WITNESS: Yeah. I don't -- I don't 3 remember. 4 MR. PETER ROSENTHAL: Yes. No, I thought 5 that may be the case, Mr. Commissioner, but I did think 6 if it could jog her memory it might be very important. 7 8 CONTINUED BY MR. PETER ROSENTHAL: 9 Q: Now -- I'm sorry, I think this is in 10 your second volume of documents from the Commissioner, 11 sorry. 12 A: Okay. That's fine. 13 Q: So it's -- because it's Tab 59, is 14 that in your second binder? 15 A: Yes. 16 Q: Sorry. 17 18 (BRIEF PAUSE) 19 20 MR. DERRY MILLAR: I think it's in -- 21 THE WITNESS: Actually it's in the first. 22 MR. DERRY MILLAR: It's in Volume I. 23 24 CONTINUED BY MR. PETER ROSENTHAL: 25 Q: It's Volume I, is it? Oh, okay.
1281 A: Yes, it's at the end of Volume I. 2 Q: Sorry. 3 A: It's okay. 4 Q: My volumes are a little different. 5 It's in my second volume. Sorry about that. 6 Now this is Exhibit P-518 to the 7 proceedings, it's Document 1008858 and it has a fax from 8 you to a number of persons and the content -- what was 9 sent by the fax as in the ensuing pages and I don't 10 believe they're numbered. 11 But much of the way in, there's a document 12 under the heading, with a stamp, "Ontario Provincial 13 Police," on top, "News Release." 14 A: Yes. 15 Q: Are you at that document? 16 A: Yes, it says, "Clarification of 17 events?" 18 Q: Yes, thank you very much, yes. Now 19 Commissioner O'Grady is quoted on the second paragraph of 20 that document: 21 "That the OPP were there to address a 22 disturbance involving First Nations 23 persons causing damage to private 24 property in the area. OPP personnel 25 did not enter the Provincial Park and
1291 were not there to remove those 2 individuals occupying the grounds." 3 The officers -- and then it continues. 4 "The officers were pelted with rocks 5 and sticks and so on." 6 Now we've had evidence at this Inquiry 7 that the actual facts that happened were quite different 8 from what is suggested by this press release. And 9 Commissioner O'Grady acknowledged that, although he says 10 he didn't know it at the time, that this did give an 11 inaccurate portrayal as to what happened. 12 Did you find out that this gave an 13 inaccurate portrayal as to what had happened, at any 14 point? 15 A: I did find out that this was 16 inaccurate some days after the -- September 7th. 17 Q: Yes. And there had been an earlier 18 press release by the OPP that was somewhat similar and 19 was inaccurate in suggesting that the First Nations 20 persons had attacked a private person in a way that is 21 much more, I characterise it as horrific -- 22 A: Hmm hmm. 23 Q: -- than anything that had happened. 24 A: Hmm hmm. 25 Q: Now, did -- was there any discussion
1301 within ONAS as to -- I'm sorry. 2 A: It's okay. 3 Q: Do you wish to -- 4 A: I had to sneeze, but it's one of 5 things -- 6 Q: Oh, okay. 7 A: -- once you think about it, it goes 8 away. 9 Q: Yeah. Well, sneezing, if you have a 10 back problem can be a problem. So I'm glad you're able 11 to avoid the sneeze. 12 So, you became aware that these press 13 releases that the OPP had put out gave an inaccurate and, 14 I would suggest, unfair portrayal of the persons who had 15 been occupying the Park. 16 Now, did ONAS or was there any discussion 17 about trying to correct the false impression that would 18 have been given by those press releases? 19 A: I can't recall, and that wouldn't 20 have been really within my control. 21 Q: I see. 22 A: It wouldn't have been under my 23 responsibility. 24 Q: I see, okay, thank you. If you could 25 turn then, please, to Tab 15, which is surely in your
1311 first volume. 2 3 (BRIEF PAUSE) 4 5 A: Yes. This is a handwritten note. 6 Q: Yes. 7 A: "Phone call from Ron Fox." That's 8 Exhibit P-505. 9 Q: Yes, thank you. And it's Inquiry 10 Document Number 3001085. 11 A: 1086, I believe. 12 MR. DERRY MILLAR: Yes. 13 COMMISSIONER SIDNEY LINDEN: 1086. 14 15 CONTINUED BY MR. PETER ROSENTHAL: 16 Q: 1086, you're right, thank you. Now, 17 okay, I'm looking at -- I want to look at the last page 18 in that tab -- 19 MR. DERRY MILLAR: There's only one (1). 20 MR. PETER ROSENTHAL: Sorry -- 21 COMMISSIONER SIDNEY LINDEN: There is 22 only one (1) page. 23 MR. PETER ROSENTHAL: I seem to have 24 something incorrect here. Excuse me a second. 25
1321 (BRIEF PAUSE) 2 3 MR. PETER ROSENTHAL: Yeah, oh. Yeah, 4 but I have it in the same tab. 5 6 (BRIEF PAUSE) 7 8 MR. PETER ROSENTHAL: I'm sorry, I 9 apologize, Mr. Commissioner. Can I... 10 11 (BRIEF PAUSE) 12 13 MR. PETER ROSENTHAL: Now wait a minute. 14 My apologies. 15 16 (BRIEF PAUSE) 17 18 MR. PETER ROSENTHAL: Ms. Esmonde informs 19 me this might also be at Tab 87 and I do apologize. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. PETER ROSENTHAL: 24 Q: It is. Sorry, please accept my 25 apologies, especially you, Ms. Jai, because you have to
1331 carry those heavy things one more time. 2 A: Okay. I -- this is handwritten notes 3 from Thursday, September the 14th? 4 Q: Yes, and it's Inquiry Document 5 1011922. 6 A: Yes. 7 Q: And this is in your hand, is it? 8 A: Yes. 9 Q: These are your notes? 10 A: Yes. 11 Q: I don't believe this one has been 12 made an exhibit and I shall seek to afterward, but am I 13 correct in reading the very first line there as: 14 "What happened re. Yesterday's Work 15 Plan? Elaine asked us to shred it." 16 A: Yes. 17 Q: And I'm reading it correctly? 18 A: That's what it says. 19 Q: And, "Elaine" is Elaine Todres? 20 A: Elaine Todres. 21 Q: Now, it says: 22 "Elaine asked us to shred it." 23 And presumably that request was followed, 24 it was shredded? 25 A: Yeah. I presume so unless the Inquiry
1341 Document database shows a work plan dated September 13th, 2 but otherwise I presume that it was shredded. 3 Q: Now, are you aware of other documents 4 that were shredded that concerned these events? 5 A: I can't recall any other documents, 6 but that doesn't mean that there weren't -- 7 Q: That there weren't? 8 A: -- I just can't recall either way. 9 Q: Was there any policy that you were 10 aware of as to what documents should be shredded and what 11 documents should not be shredded in connection with an 12 event of this type? 13 A: Well, I think any confidential 14 documents, that rather than throwing them out, we would 15 shred them. 16 Q: Yes. 17 A: So, for example, advice to ministers 18 or something like that would be considered a confidential 19 document, that rather than just throwing in the garbage 20 we would shred. 21 22 (BRIEF PAUSE) 23 24 MR. DERRY MILLAR: We do have a document 25 at Tab 78, it's Inquiry Document Number 1011910 Exhibit
1351 P-520 that's entitled, Management Plan. 2 I don't know if it's the same document as 3 being referred to by My Friend, but he asks the question 4 if she knew if it was and I don't know if this is the 5 document, but if we have this document. 6 COMMISSIONER SIDNEY LINDEN: The date is 7 September 13th? 8 MR. DERRY MILLAR: It's September 13th. 9 COMMISSIONER SIDNEY LINDEN: Yes, the 10 date is September 13th. 11 THE WITNESS: Yeah, I have -- I have a 12 feeling that that is a different document than the work 13 plan. 14 MR. PETER ROSENTHAL: Yes. 15 THE WITNESS: But I don't -- I don't know 16 for sure. 17 MR. PETER ROSENTHAL: Yes. 18 19 (BRIEF PAUSE) 20 21 COMMISSIONER SIDNEY LINDEN: I don't 22 think -- is it the document that you're interested in? 23 MR. PETER ROSENTHAL: No, no. No, no. I 24 was interested in the problem of shredding of documents. 25 COMMISSIONER SIDNEY LINDEN: Of
1361 shredding, not the documents, no. 2 MR. PETER ROSENTHAL: And I flagged that 3 problem and I was about to move on. 4 COMMISSIONER SIDNEY LINDEN: That's fine, 5 that's fine. 6 7 CONTINUED BY MR. PETER ROSENTHAL: 8 Q: Okay. I do want, Ms. Jai, if I can 9 to ask you about recommendations for future. I'm getting 10 towards the end of my examination and Commissioner 11 advised me to wait til then to do so. 12 A: Okay. 13 Q: Now first then, I would ask you, 14 given the discussion before and the recommendation made 15 by Mr. Hutchison, would you, on balance, agree that it 16 would be a good idea to have a recommendation that there 17 be a separate minister responsible for Native Affairs 18 rather than that minister being required to wear Attorney 19 General or other hat? 20 A: It's probably preferable to have it 21 as a separate minister, but I don't think that it would 22 be impossible for one (1) minister to do both jobs 23 properly. 24 Q: Yes, okay, but it would be 25 preferable?
1371 A: Yes. 2 Q: Now, there were some suggestions in 3 the materials, and maybe to save time I won't turn to 4 them although I will, if necessary, that in the aftermath 5 of this there was discussion about political people being 6 on committees such as the Interministerial Committee and 7 so on and suggestions that perhaps it be better not to 8 have political people on such committees? 9 A: Right. 10 Q: Do you -- you were involved in some 11 of those discussions? 12 A: Yes. 13 Q: Do you -- do you know what the 14 current situation is in that respect? 15 A: In Ontario now? 16 Q: Yes. 17 A: I have no idea. It's been almost ten 18 (10) years since I left the Ontario Government. 19 Q: Yes. But would -- would you be of 20 the view that committees such as that, in particular the 21 Interministerial Committees would function better if they 22 did not have political staff on them and then just made 23 recommendations to political staff? 24 A: I think that if the role -- if -- if 25 the roles were clear, like for example, if the political
1381 staff were there as, you know, with very clearly defined 2 roles, like as observers, so that they could take 3 information back to their ministers quickly. Or that it 4 was clear that they were not there to direct the -- the 5 meeting, then there could be some advantages to having 6 them there in situations where communicating information 7 quickly is important. 8 Q: I see. 9 A: Because that was the original purpose 10 of having them on the Committee was so that they could 11 immediately get back and brief their ministers and that 12 everybody would have heard the same information. 13 MR. PETER DOWNARD: I had a concern about 14 the witness answering on an area where she's speaking to 15 the original purpose of political staff being on the 16 Committee when we know the evidence is that political 17 staff attended at the Committee in prior years and -- at 18 least in 1993, and we know that this witness had nothing 19 to do with the Committee at that time. 20 So I don't understand how this witness can 21 give any evidence about the rationale, originally, for 22 having political staff on the Committee. 23 MR. PETER ROSENTHAL: I wasn't going to 24 pursue that, Mr. Commissioner. I'm more interested in 25 the future than the past in this respect and I would like
1391 to go to the future if I may. 2 3 CONTINUED BY MR. PETER ROSENTHAL: 4 Q: So the concerns that were evidenced 5 about political staff participation in the Committee 6 meetings afterward in the rethinking what had happened 7 with respect to this -- 8 A: Right, after September 7th. 9 Q: After September 7th. Was, at least 10 part of that in your mind based on the feeling that the - 11 - the presence of the political people on that committee 12 had inhibited the Committee from doing what it would have 13 liked to do to try to avert that tragedy? 14 A: I don't know why. In fact, I think 15 that that's something that would have to be asked of 16 Larry Taman because it was really his direction that -- 17 Q: I see. 18 A: -- after September 7th that we -- we 19 constitute the Committee and separate political staff and 20 really return to what is the normal situation that 21 communication with political staff by public servants go 22 through the Deputy Minister rather than having the direct 23 communication. 24 So, that was the -- 25 Q: That came from him?
1401 A: -- the instruction from Larry on 2 September 7th. And obviously in those days following, I 3 mean, everything -- there wasn't a lot of time for 4 explanations. We just did what we were told. It was a 5 very busy and difficult time. 6 Q: Yes. And did you, yourself, though 7 agree with that recommendation? 8 A: I don't know if I even thought about 9 whether -- because everything is contextual. 10 Q: Yes. 11 A: So, it really depends on the 12 situation and how it's functioning. I did participate in 13 the Interministerial Committee prior to 1995 as a -- a 14 member, not as the chair. And at that time there were 15 political staff on the Committee and the Committee seemed 16 to function well at that time. 17 So, it really seems to depend on the 18 context and the individuals and what they understand 19 their role to be. 20 Q: I see. And was it the fact that 21 earlier the political people played the role that you 22 suggested they should play, mainly as observers and 23 communicators; is that the -- 24 A: I can't recall in detail. All -- all 25 I can say is that in the previous meetings that I had
1411 attended there was no conflict between, let's say, the 2 political staff and the public servants, that everybody 3 agreed there was consensus. 4 So, it was a completely different context. 5 Q: Right. So, it wasn't a problem at 6 all? 7 A: It wasn't a problem in the past. 8 Q: Right. Now, in some of the post- 9 September 11 discussions there were concerns also 10 expressed about police officers being part of such 11 committees, right? 12 A: Yes. 13 Q: And, again, was that -- did that 14 emanate from Mr. Taman, that concern or -- 15 A: I can't recall. It would have been a 16 general concern. It was a concern we were aware of even 17 prior to that. 18 As you know from the -- my earlier 19 testimony, there was some sensitivity to the issue as to 20 whether police should be involved because they might be 21 overly influenced by the Committee discussions and not 22 really understand the context of, you know, maybe a free 23 flowing discussion not being directive or whatever. 24 There was, as I mentioned, I think 25 yesterday, in the subsequent material, I think, in the
1421 February 9th version -- or February version of the slides 2 on the procedures for emergencies, a change back where 3 the Premier's Office did become a member of the 4 Interministerial Committee again. 5 Q: And were you ever made aware in -- in 6 rough outline, as to what actually happened on the night 7 of September 6th? 8 Did the -- did the police report to your 9 committee in any way, or anything like that? 10 A: Ron Fox told me at some point what 11 the -- what actually happened. 12 Q: I see. I realize there's -- there's 13 one (1) other question I should ask you. 14 It had been reported third-hand or more 15 perhaps, third-hand I think is correct, to these 16 proceedings, that you had said to someone, who said to 17 someone, that Premier Harris -- 18 COMMISSIONER SIDNEY LINDEN: She's -- I'm 19 sorry, she's already been asked that question. 20 MR. PETER ROSENTHAL: But, I'm going to 21 ask a different variant of it -- 22 COMMISSIONER SIDNEY LINDEN: Are you? 23 All right. 24 MR. PETER ROSENTHAL: -- Mr. 25 Commissioner. Please let me ask the question.
1431 2 CONTINUED BY MR. PETER ROSENTHAL: 3 Q: You have been -- attributed to you 4 third hand, had been something to the affect of the 5 Premier saying, We want the Indians out of the Park and 6 we don't care if you have to use guns to do it, or words 7 to that affect. 8 Now you indicated that you didn't say 9 that, right? 10 A: That's correct. 11 Q: And you didn't hear it said by anyone 12 at any Interministerial Committee meeting? 13 A: Correct. 14 Q: Now, I want to ask you a broader 15 question: Did you hear anyone attribute that statement 16 or something close to it to the Premier, at any time in 17 the course of these events, September 5, 6, 7? 18 A: No. 19 Q: Thank you very much. I hope your 20 back feels better soon. 21 COMMISSIONER SIDNEY LINDEN: Thank you. 22 MR. PETER ROSENTHAL: Thank you, Mr. 23 Commissioner. 24 COMMISSIONER SIDNEY LINDEN: Thank you, 25 Mr. Rosenthal.
1441 MR. DERRY MILLAR: Perhaps -- 2 MR. PETER ROSENTHAL: A helpful 3 interjection for a change. 4 MR. DERRY MILLAR: The Inquiry Document 5 1011922, I believe My Friend, at Tab 87, wanted to mark 6 that as an exhibit. 7 MR. PETER ROSENTHAL: How can you say 8 what was in my mind? 9 MR. DERRY MILLAR: Because he said it 10 earlier. 11 THE REGISTRAR: P-710, Your Honour. 12 COMMISSIONER SIDNEY LINDEN: P-710, 13 right. 14 15 --- EXHIBIT NO. P-710: Document Number 1011922. 16 Julie Jai's handwritten 17 notes, Sept. 14/'95. 18 19 COMMISSIONER SIDNEY LINDEN: Next then is 20 Mr. Scullion. 21 22 (BRIEF PAUSE) 23 24 MR. KEVIN SCULLION: Good morning, Mr. 25 Commissioner.
1451 COMMISSIONER SIDNEY LINDEN: Good 2 morning. 3 MR. KEVIN SCULLION: Ms. Jai. I can 4 advise that after hearing Mr. Rosenthal for the morning, 5 there's been significant overlap in questions, and I'll 6 be much less than my anticipated time. Although I'm not 7 sure that I'll be done before noon, but I'll do my best 8 to keep with the timeline so far. 9 10 CROSS-EXAMINATION BY MR. KEVIN SCULLION: 11 Q: Ms. Jai -- 12 A: Yes. 13 Q: -- my name's Kevin Scullion. 14 A: Yes. 15 Q: I'm one (1) of the counsel for the 16 residents of Aazhoodena, also known as the Stony Point 17 Group. My questions may be a little less controversial, 18 or have less objections. 19 At the outset I'd like you -- I'd like to 20 walk through a little bit of the background that you had 21 going into these meetings in September, and if I could 22 turn you, I'm only going to refer to one (1) of your 23 binders, it's going to be Tab 1, and only a few of the 24 tabs. But at Tab 10 -- 25 A: Yes.
1461 Q: -- I have your notes of your 2 telephone calls, and I just wanted to ask you a couple of 3 questions about a number of those entries? 4 A: Yes. 5 Q: There's an entry at August 3 -- 6 A: Yes. 7 Q: -- and it's difficult to direct you 8 to a page, since we don't have page numbers with this. 9 A: Right. 10 Q: But just for the record it's Exhibit 11 P-644, that I'm referring to. And as I go to August 3 12 there's an entry where some discussions with Jeff 13 McCombe? 14 A: Yes. 15 Q: Do you see those, and there's a title 16 of, Gull Bay? 17 A: Yes, that may be a -- I don't know if 18 that's related to the Jeff McCombe phone call or not. 19 Q: Okay. I just -- I saw the notation 20 beside Jeff McCombe -- 21 A: Hmm hmm. 22 Q: -- just dealing with the OPP, with 23 protestors. 24 A: Right. And then it says: 25 "Don't -- don't feel injunction is
1471 needed." 2 Q: Right, and MTO is listed, injunctions 3 and the OPP are listed there? 4 A: Right. 5 Q: Can I draw from that notation, that 6 you at least had some discussion, some idea of the 7 concept that injunctions and whether or not the OPP 8 required them to act in certain circumstances? 9 A: Yes. 10 Q: There's another entry at August 4 11 that deals with a Cape Croker? 12 A: Yes. 13 Q: And that's another First Nation and 14 that, I presume, was dealing with the native fishing 15 rights -- 16 A: Yes. 17 Q: -- of Cape Croker? 18 19 (BRIEF PAUSE) 20 21 Q: And at August 10th, there's another 22 entry that deals with Cat Lake. 23 A: Yes. 24 Q: And my understanding is Cat Lake is 25 also a First Nation that broke away from the main First
1481 Nation of Osnaburgh back in 1970. 2 Were you aware of that? 3 A: I believe that's the case. It's been 4 a long time. 5 Q: Okay. 6 A: I believe -- we were seeking some 7 reserve land for Cat Lake, that's what I remember about 8 Cat Lake. I can't remember the exact relationship they 9 had with the other First Nation. 10 Q: That was my impression from seeing 11 your note, that that may have been one of the issues you 12 were dealing with and my point being that the concept of 13 having a dissident group from a First Nation is -- wasn't 14 something new for you, at least from the perspective you 15 dealt with it at least once before. 16 A: Oh, yes. 17 Q: And, in fact, the concept of a group 18 having difficulties with the way Indian Affairs dealt 19 with them, separate and apart from how Indian Affairs 20 dealt with the First Nation, was an issue that ONAS was 21 aware of? 22 A: Yes. 23 Q: And it wasn't something new that came 24 with Ipperwash; it was something that you'd dealt with 25 before?
1491 A: Yes. 2 Q: And in fact, I think as part of your 3 examination in-chief, there was some reference to the 4 briefing note that you gave back in August and I can 5 refer you to it if you'd like, but there's a notation 6 that says that that's something that you should always be 7 aware of, which is the dealings of the First Nation and 8 other groups with Indian Affairs and how they're dealt 9 with by way of Indian Affairs or the Indian Act as -- 10 A: Yes. 11 Q: -- opposed to Band custom. 12 A: Yes. 13 Q: All right. With respect to these 14 other issues, would it have been customary for you, as 15 part of ONAS, to deal with Indian Affairs? 16 A: Sometimes, yes. 17 Q: Okay. In terms of sometimes, what 18 would be an example of why you'd call Indian Affairs; 19 when would that occur? 20 A: Well if it was, for example, a -- I 21 think Cat Lake, for example, was a negotiation that 22 involved the Federal Government and Ontario so in that -- 23 that was an ongoing negotiation I would have had contact 24 with Indian Affairs, or at least their lawyers on that. 25 So whenever the Federal Government was
1501 involved, I would be in contact with Federal people. 2 Q: Whenever it was involved or could be 3 involved, in your opinion, you'd give them a call? 4 A: Yes. 5 Q: Is that fair? And who in Indian 6 Affairs would you deal with? 7 A: It would depend on the issue, so 8 there wasn't any one person. There were many different 9 people on different files. 10 Q: Okay. And if it was a land claim, 11 is there any particular person you'd deal with at Indian 12 Affairs? 13 A: Well, I believe at the time there was 14 somebody who was a senior official at DIAND whose name 15 was Audrey Doer but that was with respect to land claims. 16 Q: Okay. 17 A: As I said, for every situation it 18 could be a different person. 19 Q: I'm looking at it from the 20 perspective of is there somebody at Indian Affairs, or is 21 there a department or sub-department -- 22 A: Sorry, I can't hear you. 23 Q: I'm looking at it from the 24 perspective of whether or not there's somebody at Indian 25 Affairs that, if an event comes up for ONAS, that you
1511 would contact that person and perhaps I'll be more 2 specific to the emergencies committee or the blockade 3 committee. 4 And my question is: With relation to this 5 committee, and the fact that it was put together at the 6 start of September to deal with the Ipperwash matter, was 7 there anyone in particular that you looked to at Indian 8 Affairs to speak with about the issue? 9 A: I think with respect to Ipperwash 10 there were a couple of people who I spoke to. I think 11 Glen Brennan was one of the people at -- at INAC, who I 12 spoke to. 13 Q: And I note from your telephone log at 14 September 5th, there appears to be two (2) notations for 15 Glen Brennan. 16 A: Yes. 17 Q: And there's another name in there 18 that says, or Lori Ransom, was she also with INAC? 19 A: Yes. 20 Q: And there's a checkmark beside those 21 two (2) notations which I presume means that you didn't 22 simply leave a message, you spoke with somebody? 23 A: Right. Right. 24 Q: Do you recall if these phone calls, 25 if there was more than one (1) phone call there, were
1521 made before or after the Interministerial Committee on 2 September 5th? 3 A: I can't recall, probably after, but I 4 can't recall for sure. I mean it's also possible that 5 one (1) was made before and one (1) was made after. It's 6 -- it's difficult to say. 7 Q: I understand, but I raised it because 8 we have a situation that's a little more complicated than 9 the usual situation. We have -- 10 A: Hmm hmm. 11 Q: -- a dissident group from the First 12 Nation, we have an Army Camp land that has been occupied 13 for at least a month in the main area and for two (2) 14 years in the rest of the Army Camp. We've had the 15 Federal officials involved and the OPP in the background 16 and now we have an occupation of the Provincial Park. 17 You'd agree with me that there's a lot of 18 actors in this -- 19 A: Yes. 20 Q: -- certain portfolio? And it would 21 have been helpful and it would appear that you agreed 22 with that, it would have been helpful to speak with 23 Indian Affairs on that issue? 24 A: Yes. 25 Q: In particular, do you recall whether
1531 Indian Affairs or anybody at Indian Affairs let you know 2 that Ron French was coming to visit on September the 6th 3 -- visit the area? 4 A: I can't recall. Is Ron French 5 someone from Indian Affairs? 6 Q: Ron French is with Indian Affairs. I 7 raised it because in your testimony you've indicated that 8 it would have been helpful to have had some information 9 from the occupiers. 10 A: Right. 11 Q: And there was a lot of discussion and 12 some debate this morning about whether or not somebody 13 from ONAS or from the OPP, MNR, or somebody else was the 14 appropriate person to do that. 15 A: Hmm hmm. 16 Q: And my question for you is whether or 17 not it would have been helpful for ONAS to have been 18 aware that INAC had a person going on September 6th to 19 the area and perhaps could have reported back to you some 20 of that information? 21 A: It would have been useful, yes. 22 Q: Okay. And it would have been useful 23 within the context of these Interministerial Meetings 24 that were occurring because it could have provided more 25 information and perhaps a different context?
1541 A: Yes. 2 Q: To touch upon the point I just raised 3 on having the OPP being the lead people on the ground 4 talking with the occupiers, was there any discussion at 5 the Interministerial Meetings about what I'll suggest is 6 a difficulty with the OPP being the people trying to 7 negotiate with the occupiers when the OPP have some 8 instructions to remove them as soon as possible, the OPP 9 have some search warrants or arrest warrants for at least 10 three (3) of them. 11 Would that be an issue that was discussed? 12 A: It would certainly make -- it would 13 make it difficult for them to be the negotiator/ 14 facilitators, but we had -- the -- the direction was 15 really not to do the usual negotiating so that the OPP 16 were really just going to fact find and gather 17 information. 18 So that although we knew that because they 19 were -- because John Carson was an OPP member that would 20 limit his ability to, for example, you know, be 21 persuasive or gain the trust of the occupiers, we thought 22 that he would still be able to perform the function of 23 gaining some basic information like, you know, what -- 24 who the spokesperson for the occupiers was and what they 25 wanted.
1551 Q: Right. 2 A: So, we were looking at the OPP more 3 in that light. 4 Q: It would have been a problem if 5 actual negotiations were taking place, but it was 6 appropriate because it was a fact-finding mission? 7 A: Yes. 8 Q: There's been some discussion of Ovide 9 Mercredi offering his services and being rejected by the 10 occupiers? 11 Would you agree with me that using someone 12 such as Ovide Mercredi for this purpose wouldn't have 13 been appropriate in the circumstances? 14 A: I'd rather not comment on that. I 15 don't think I'm really in the best position to say. I 16 mean, I agree that somebody who was, at that time, the 17 head of the AFN would also be somebody who had a 18 particular institutional role that could have made it 19 less easy for him to be neutral and impartial in the way 20 that a good mediator, facilitator could be. 21 Q: Right. If you were looking for 22 somebody to be a neutral facilitator he would have been 23 appropriate, but in these circumstances you weren't 24 looking for somebody to do that were you; as a committee 25 not personally?
1561 A: Well, actually, I think you've 2 misinterpreted my last comment. You were asking whether 3 Ovide Mercredi would have been an appropriate negotiator, 4 facilitator. 5 And I guess I understood that -- that 6 question to mean if we were going to be seeking somebody 7 to do the normal negotiation around a process to end the 8 occupation, would Ovide Mercredi have been a good person. 9 And you were suggesting to me that he was 10 not and my answer was that I didn't really feel I was in 11 a position to comment on that -- on whether, you know, he 12 was appropriate or not as a person. 13 But that just trying to understand what 14 might be behind your question I -- 15 Q: Why don't I -- why don't I back up a 16 step? 17 A: Okay. 18 Q: Let's break it into two (2) parts. 19 If you were looking to negotiate, as you'd indicated 20 would have been a possible approach, someone such as 21 Ovide Mercredi would have been appropriate in the 22 circumstances? 23 A: I guess I'll just say that I don't -- 24 I don't want to comment on that right now. I don't want 25 to comment on particular people who would have been --
1571 COMMISSIONER SIDNEY LINDEN: Well, she 2 doesn't want to comment on the individual, but she said 3 something -- 4 MR. KEVIN SCULLION: That's what I'm 5 hearing. 6 COMMISSIONER SIDNEY LINDEN: -- but she 7 said something about the institution that he'd be the 8 head of and that that might be a factor that -- 9 THE WITNESS: Well, just that some of it 10 that -- 11 COMMISSIONER SIDNEY LINDEN: -- would be 12 considered. 13 THE WITNESS: -- the -- the position of 14 being the Grand Chief of the AFN could, in some ways, be 15 an obstacle to being the neutral mediator. 16 17 CONTINUED BY MR. KEVIN SCULLION: 18 Q: I need to back up a little bit 19 further. I'm not looking for an opinion on Ovide 20 Mercredi as a facilitator or his position as the Chief of 21 the AFN at the time. 22 I was simply looking to the question of 23 whether or not the Government was looking for a 24 facilitator at that point? And then I believe I -- 25 A: We were not.
1581 Q: -- have the answer that you were not? 2 A: We were not. 3 Q: Thank you. And I was following this 4 morning, I was just trying to understand the full 5 dynamics of what was going on at these meetings and, in 6 particular, the meeting of September 6th. 7 My impression from what I've heard from 8 you was there was a number of different groups in the 9 room, ONAS being one of them, and the position taken, if 10 I can go through one (1) at a time, by the OPP were 11 indicating to you they wanted to go slow and they 12 preferred to have an injunction in place before they did 13 anything; is that -- 14 A: Yes. 15 Q: -- accurate? MNR was indicating that 16 they didn't want to take the lead role and that if it was 17 getting beyond the park that they felt this was a police 18 situation? 19 A: Yes. 20 Q: Is that fair? 21 A: Yes. 22 Q: The Solicitor General was saying, we 23 don't direct the OPP as to what they do, take it slow, 24 get the injunction and proceed in that way? 25 A: Yes.
1591 Q: The Attorney General was -- you 2 briefed the Attorney General the night before and the 3 instruction -- 4 A: Well actually it was the morning of 5 September 6th. 6 Q: The morning of September 6th. I 7 stand corrected. You had briefed the Attorney General 8 and the instruction was to seek the injunction and it 9 wasn't on an ex parte basis? 10 A: Correct. 11 Q: And just on that note, when you were 12 speaking with Mr. Rosenthal there was some question of 13 whether or not there was tension considering the two (2) 14 separate hats. 15 And my only question was, whether or not 16 the fact that there was two (2) different hats being worn 17 by the Minister, was that discussed in that briefing that 18 morning? 19 A: It was not discussed in the briefing 20 with the Minister. It's possible that it's something 21 that Larry and I discussed in a meeting -- our meeting 22 prior to meeting with the Minister. 23 Q: Okay. But it wasn't discussed with 24 the Minister in the briefing? 25 A: Right.
1601 Q: Then we have ONAS in this room, in 2 the meeting. 3 A: Hmm hmm. 4 Q: Do I take it from your evidence that 5 ONAS was not advocating for taking an emergency approach 6 to doing something on an ex parte basis? 7 A: That's correct. 8 Q: Is that fair? 9 A: Yes. 10 Q: But that the only one (1) advocating 11 this emergency approach was the Premier's office? 12 A: Yes. 13 Q: And notwithstanding, and I appreciate 14 that this was a difficult room to manage as the Chair of 15 the meeting, but notwithstanding all these divergent 16 views, you were able to come at least to your 17 understanding, to some sort of a consensus at the end of 18 the meeting? 19 A: Yes. 20 Q: Okay. And that consensus was that 21 the injunction would be sought, but not on an ex parte 22 basis? 23 A: Right, because we could get before a 24 judge in two (2) days -- 25 Q: That was the understanding he could
1611 be there by Friday? 2 A: That was the understanding, so that 3 seemed fairly quick, so that there was -- that was a way 4 of responding both to the sense of urgency, but also 5 responding to the -- the legal advice and the -- and 6 desires of most of the people in the room, that we seek 7 an injunction with notice, in the normal way. 8 Q: It seemed to be the appropriate way 9 of proceeding, given all the input in that room? 10 A: Yes. 11 Q: Thank you, those are all my 12 questions. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much, Mr. Scullion. 15 This would be a good time to adjourn for 16 lunch. 17 THE REGISTRAR: This Inquiry stands 18 adjourned until 1:15. 19 20 --- Upon recessing at 12:00 p.m. 21 --- Upon resuming at 1:16 p.m. 22 23 THE REGISTRAR: This Inquiry is now 24 resumed. Please be seated. 25 COMMISSIONER SIDNEY LINDEN: I think
1621 you're up, Mr. Henderson. 2 MR. WILLIAM HENDERSON: Thank you, 3 Commissioner. 4 5 CROSS-EXAMINATION BY MR. WILLIAM HENDERSON: 6 Q: Good afternoon, Ms. Jai. My name is 7 Bill Henderson. I represent the Chippewas of Kettle and 8 Stony Point First Nation. 9 A: Good afternoon. 10 Q: I believe it was on Monday when -- 11 when you were being questioned, there was some discussion 12 about a concern that if an ex parte injunction was 13 refused in this situation, that it might create a bad 14 precedent, and I think the words you used were, for a 15 situation where you might really need one. 16 A: Yes. 17 Q: Do you recall saying that? 18 A: Yes. 19 Q: Now, obviously you didn't think that 20 this is one of the most serious situations where this 21 type of legal remedy might be needed? 22 A: Right. 23 Q: In other words, you could envisage 24 worse situations where other activities were going on -- 25 A: Yes.
1631 Q: -- and that would go not to the legal 2 test or the legal exigencies for -- for an ex parte 3 injunction, but to the merits of the situation as you -- 4 or the gravity of the situation as you appreciated it? 5 A: I'm not sure I understand the 6 question. 7 Q: Okay. When you -- when you say that 8 you could envisage more serious situations, you weren't 9 thinking particularly of the legal requirements, if any, 10 for an ex parte injunction or the legal test to get one, 11 but actually to the gravity of the situation at Ipperwash 12 Park as you appreciated it? 13 A: Yes. 14 Q: Thank you. Now, it is inevitable, I 15 suppose, that I -- that I have to talk about the 16 emergency -- the emergency Committee meetings and I'll 17 try to approach it a different way. 18 The dis -- the part of the discussion in 19 the September the 5th meeting, where it was expressed on 20 behalf of the Premier's office that, one hesitates to use 21 any word like 'immediate' or 'urgent' or 'imperative' but 22 it was important that the situation be dealt with as 23 quickly as possible? 24 A: Yes. 25 Q: And then there follows a discussion
1641 on that point and at some juncture, Mr. Hutchison advises 2 the meeting that the Government cannot instruct the OPP 3 what to do? 4 A: Yes. 5 Q: Now, it's difficult to tell from 6 handwritten notes what period of time that first -- that 7 interval covered from the opening of the meeting to the 8 hawkish comment, to Mr. Hutchinson's advice. 9 Looking at the length of notes, such as 10 they are, it looks like it might have been almost an 11 hour. Would that be -- 12 A: Yes. 13 Q: That would be correct? Would it be 14 closer to the hour or closer to a half hour or... 15 A: Well, I wouldn't say that he would 16 have made those comments in the -- 17 OBJ COMMISSIONER SIDNEY LINDEN: I see an 18 objection. I think we should wait to hear the objection. 19 MR. PETER DOWNARD: Well, I thought the 20 evidence was that Mr. Hutchison didn't make any comments 21 on the meeting of the 5th, because he wasn't at the 22 meeting of the 5th, that he made his comments on the 23 meeting of the 6th. 24 COMMISSIONER SIDNEY LINDEN: I think 25 that's the evidence. I think --
1651 THE WITNESS: Yeah, I thought we were 2 talking about the meeting of the 6th. 3 MR. WILLIAM HENDERSON: Oh, I'm sorry, I 4 started on the 5th. 5 COMMISSIONER SIDNEY LINDEN: Mr. 6 Hutchison wasn't there on the 5th. 7 8 CONTINUED BY MR. WILLIAM HENDERSON: 9 Q: Okay. What -- and Ms. Hutton wasn't 10 at the meeting on the 5th or was she? 11 A: She was at the meeting on both days. 12 Q: On both days. 13 A: But Scott Hutchison was only at the 14 meeting on September 6th. 15 Q: Okay. So, would it -- would it then 16 be correct, and I'm grateful to My Friend for -- for 17 correcting me, would it be correct to say that the 18 expressions continued through the entire meeting on the 19 5th and up to the point at which Scott Hutchison said the 20 Government can't tell the OPP what to do on the 6th? 21 A: Which expressions? 22 Q: The expressions on behalf of some 23 political staff that the Government wanted fast action on 24 this. 25 A: And well those -- I think that those
1661 expressions were throughout the meeting, that the 2 Government wanted fast action. 3 Q: That's throughout the meeting on the 4 5th, which was three (3) hours? 5 A: Oh, sorry, now you're jumping back to 6 the 5th? 7 Q: I'm sorry, I am, yeah -- 8 A: Because -- 9 Q: -- I did say both meetings. Okay, 10 the meeting on the 5th, those expressions ran through 11 that whole meeting? 12 A: Well, I wouldn't -- I would say that 13 was the general -- I mean it's not like the comments were 14 constantly repeated, but it's not like those expressions 15 stopped at any point in time at either of the meetings. 16 So, you were originally asking me about 17 Scott Hutchinson's -- 18 Q: Yes. 19 A: -- intervention and suggesting that 20 it was up until that point that the -- that there were 21 people saying they wanted action as soon as possible. 22 And my only comment would be that the expression that 23 some people had made as to the urgency, didn't end when 24 Scott Hutchinson made his intervention. 25 Q: Okay. Thank you for that. And
1671 generally, you have expressed in your evidence, that 2 those expressions caused a certain tension in the 3 meeting? 4 A: Yes. 5 Q: And that tension then was still there 6 at the end of the meeting on the 5th? 7 A: Yes. 8 Q: And did it diminish after Scott 9 Hutchinson's intervention in the -- 10 A: Well his -- 11 Q: -- meeting on the 6th? 12 A: -- intervention was on the 6th. 13 Q: On the 6th, yes. 14 A: No, I don't think that the tension 15 diminished that much. 16 Q: Okay. So, where -- where we have 17 heard the suggestion that everybody had agreed on an 18 injunction as the strategy, and that the tension had 19 dissipated, in fact the tension never did dissipate? 20 A: I would say that the tension didn't 21 dissipate, that it was -- there was something that we 22 could say that we had coalesced around, and that we could 23 say that we had agreed upon. 24 Q: Yes. 25 A: But, that doesn't mean that everybody
1681 -- that there were no tensions, that -- that opposite of 2 conflicting views had completely disappeared. 3 Q: Okay. Now, when Inspector Fox gave 4 evidence, with particular regard to -- to Ms. Hutton's 5 stance in these meetings, he suggested that she was 6 adamant, and that was the word that he used. 7 Would you describe that as an accurate 8 characterization or an appropriate word? 9 A: Adamant? 10 Q: Adamant, in terms of getting things 11 going, getting the -- getting the police to work? 12 A: Well, she was very -- 13 Q: Like that -- 14 A: -- forceful and spoke as if she had 15 the -- the authority of the Premier behind her. 16 Q: Okay. Now, after the meeting on the 17 5th, there was a further meeting of the Legal Committee 18 that afternoon -- 19 A: Yes. 20 Q: -- to assess injunctions and things 21 like that? 22 A: Right. 23 Q: The meeting on the 5th, was it held 24 in your offices, or elsewhere in -- in Toronto? 25 A: I believe it was at my offices, which
1691 is 595 Bay Street. It's possible that it was at 720 Bay, 2 which is -- 3 Q: Hmm hmm. 4 A: -- quite close by. 5 Q: Yes. 6 A: But, I -- I mean, I can't remember 7 for sure, but it's most -- it appears most likely that it 8 was at my offices -- 9 Q: Okay. 10 A: -- at the Native Affairs 11 Secretariate. 12 Q: And those offices were in the atrium 13 on Bay -- 14 A: Yes. 15 Q: -- if memory serves? 16 A: Yes. 17 Q: And 720 is the Attorney General's 18 offices -- 19 A: Yes. 20 Q: -- further up Bay Street? 21 Do you recall what interval there may have 22 been between the meeting on the 5th and the Legal Sub- 23 Committee that was looking at the injunctions? 24 A: Well, the meeting -- the 25 Interministerial Committee started at 11:00 --
1701 Q: Hmm hmm. 2 A: -- on the 5th, and it went until 3 approximately 1:30. And then I know that there was some 4 time in between. So, my guess would be that we met at 5 about three o'clock. 6 Q: Okay. And did you go back to your 7 offices at that time? 8 A: Well -- 9 Q: During that interval? 10 A: -- in between, yes, I was at my desk 11 working and writing e-mails and doing various things, 12 preparing briefing notes, et cetera. 13 Q: Right. Now was Yan Lazor in the 14 offices on those dates? 15 A: Yes. I believe he was. 16 Q: Would you have likely taken the 17 opportunity, or do you recall if you did take the 18 opportunity to stop into his office and greet him? 19 A: I probably would have, yes. 20 Q: Okay. Do you know if there would 21 have been anybody else in his office when you did that? 22 A: I can't recall. 23 Q: Okay. And you don't recall going out 24 for lunch that day or -- 25 A: I definitely did not go out for
1711 lunch. 2 Q: You definitely did not, that's -- 3 that's a good recollection. 4 After the Legal Sub-Committee meeting, did 5 you again -- I don't know how long that went, so perhaps 6 you could tell me, and then what you did after that? 7 A: Well, that meeting was approximately 8 an hour or an hour and a half. 9 Q: Hmm hmm. 10 A: And after that I wrote the briefing 11 note that was called the Blue Note for the Minister. 12 Q: Yes. 13 A: I would have also reviewed the 14 material that -- that came out of the Legal Sub- 15 Committee, which we've all seen, that was an attachment 16 to the Blue Note for the Minister. I would have also 17 prepared, sort of, my oral briefing for the Minister, 18 because I -- and I would have set up that meeting with 19 the Minister for the next morning. 20 And I would have continued to have -- to 21 talk to people like Ron Fox, to get ongoing updates, and 22 just talk to other people who had to be kept informed of 23 things. Probably would have talked to Communications 24 Branch about starting to gather clippings on the issue. 25 So, just a bunch of tasks related to the -
1721 - the occupation. 2 Q: Hmm hmm. Did you go home at a 3 reasonably normal hour on the evening of the 5th? 4 A: I -- I know -- I can't remember when 5 I went home, but I am sure it was not before six o'clock, 6 but when -- when exactly I left I can't say. 7 Q: Okay. And you have given evidence 8 about the meeting the following morning, which started 9 at -- 10 A: Approximately 8:30. 11 Q: Approximately 8:30? 12 A: Or possibly earlier, I'm -- because I 13 know that there was a meeting -- that I had a meeting 14 with Yan, and also a meeting with Larry Taman, prior to 15 our meeting with the Minister, so if we were meeting with 16 the Minister at say 8:30 or 8:45, I would have also had 17 these prior meetings. 18 Q: Yes, thank you. And you've again 19 said that after the Inter-Ministerial Committee meeting 20 on the 6th, you returned to your office and you didn't go 21 out for lunch with the staff and -- 22 A: Right. 23 Q: -- you don't recall having any 24 discussions with anyone? 25 A: Right. I mean --
1731 Q: Would you have -- 2 A: -- any -- any non work related 3 discussions. Of course I had discussions that were 4 related to the followup from the meeting -- 5 Q: Yes. 6 A: -- or things that had to be done, or 7 you know, the preparing of various documents. Reviewing 8 the minutes of both meetings, that's another thing that I 9 would have done on the 5th, would have been reviewed and 10 revised the draft meeting notes, and similarly on the 11 6th, that would be another task I would have done. I 12 think I was also doing -- producing additional briefing 13 notes. 14 Q: Okay. Now, your evidence was 15 essentially, and I'm characterizing this, so please 16 adjust as necessary. You had a number of work related 17 discussions in the sense of the Ipperwash issue, a number 18 of people that you talked to -- 19 A: Right. 20 Q: -- in various departments? 21 A: Right. I spoke to Dave Carson about 22 the burial site research, the Cemeteries Act, you know, 23 there were many, many tasks. 24 Q: Yes, and you spoke to Ron Fox -- 25 A: Yes.
1741 Q: -- and you probably spoke to someone 2 from Indian Affairs and -- 3 A: Yes. 4 Q: Okay. Now you seem to have 5 distinguished, quite clearly, that on the 6th you didn't 6 speak to anyone who was not involved in that project. Is 7 that -- are you firm in that, or -- 8 A: Sorry, anyone that was -- 9 Q: That was not involved in the 10 Ipperwash issue, one (1) way or another? 11 A: Well, I can't -- it's possible that 12 somebody phoned me on an unrelated matter and that I 13 spoke to them, I'm -- 14 Q: Hmm hmm, okay. 15 A: -- I can't -- it's sort of too 16 sweeping a question to be able to answer, given that it 17 was ten (10) years ago. 18 Q: Oh, I'm -- I'm quite sure that it's - 19 - it's an unfair question and a very reasonable answer in 20 the circumstances. 21 The -- the reason that I'm -- that I'm 22 asking this, is of course you are familiar with the 23 evidence that -- that Bob Watts has given -- 24 A: Yes. 25 Q: -- at the Inquiry here. And you're
1751 aware that he had a conversation, on his evidence, with 2 Leslie Currie, and that his understanding of that 3 conversation or his recollection of that conversation 4 with her, was that she had learned from you that a 5 certain statement had been made. 6 You're aware of that of course? 7 A: Yes, I'm aware of that. 8 Q: And while this is a prize I'm sure 9 you have no wish to have won at all. What we find 10 ourselves in is -- is at the end of a chain and you may 11 have been at the other end, and you may not have been, 12 there's always the possibility of error. We don't know 13 what Ms. Currie is going to say, for example, right now. 14 MR. WILLIAM HENDERSON: And in a sense, 15 we may even have had reference to this earlier, Mr. 16 Commissioner, when we were young we used to play a game 17 called the telephone game, where you start a message and 18 the message goes around and goes around. 19 20 CONTINUED BY MR. WILLIAM HENDERSON: 21 Q: And at this point, it's trying to 22 reconstruct that chain back and what the original message 23 might have been and it's quite clear from your evidence 24 that you don't -- you never heard the state -- the 25 alleged statement made about what the Premier wanted?
1761 A: Right. 2 Q: And that you didn't repeat words to 3 that effect to anyone else? 4 A: Right. 5 Q: In which circumstance it's quite 6 clear that somebody was characterizing or putting a gloss 7 on or inflating whatever might have been said, if indeed 8 anything was said? 9 Is that a fair assessment? 10 A: Since I didn't say the alleged 11 statement -- 12 Q: Yes. 13 A: -- and I didn't hear it said, I can't 14 really comment any further. 15 Q: Okay. 16 COMMISSIONER SIDNEY LINDEN: I think 17 that's fair. 18 19 CONTINUED BY MR. WILLIAM HENDERSON: 20 Q: Is it at all possible that you had a 21 conversation with someone that may have expressed the 22 tension in the meeting and the general tenor of what was 23 being expressed at what has been described as the one 24 extreme; at least it was described that way to Inspector 25 Fox and he agreed.
1771 Is it possible that you conveyed that 2 tenor to someone who may have then, you know, added their 3 own gloss and passed it down the way? 4 COMMISSIONER SIDNEY LINDEN: How could 5 she say that? 6 MR. DERRY MILLAR: I don't think that she 7 -- she might be able to answer the question, did you 8 express -- the first part of the question. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 MR. DERRY MILLAR: She clearly can't 11 answer the second part of the question. 12 COMMISSIONER SIDNEY LINDEN: What 13 happened from then on. The first part of your question, 14 I think, is a fair question. Beyond that, I don't think 15 she -- 16 MR. WILLIAM HENDERSON: Let's do the 17 first part, then, Commissioner. 18 19 CONTINUED BY MR. WILLIAM HENDERSON: 20 Q: Is it possible that you conveyed at 21 some point, either on the 5th or the 6th, the nature of 22 the tension and the reasons for it to someone else in the 23 office or in one of your other conversations that may 24 have fed into this chain? 25 Did you -- did you reflect that in your
1781 conversations with other people? 2 COMMISSIONER SIDNEY LINDEN: You have to 3 stop. 4 MR. DERRY MILLAR: We -- I'm up on the 5 "may have" -- 6 COMMISSIONER SIDNEY LINDEN: Yes -- 7 MR. DERRY MILLAR: -- on end of this 8 chain. 9 COMMISSIONER SIDNEY LINDEN: -- from then 10 on. 11 MR. DERRY MILLAR: If My Friend would 12 stop before then, I think if the Witness can answer, she 13 can answer. But -- 14 OBJ MR. PETER DOWNARD: At this stage of the 15 evidence, I object to even the suggestion that there is 16 much of a chain at all. 17 COMMISSIONER SIDNEY LINDEN: Well the 18 part about the chain is not something we have -- 19 MR. WILLIAM HENDERSON: We have evidence 20 of a chain. It may be erroneous and it may be -- 21 COMMISSIONER SIDNEY LINDEN: Not from 22 her, though. She hasn't said anything about it. 23 MR. PETER DOWNARD: It's not a chain -- 24 MR. WILLIAM HENDERSON: Well it's not -- 25 COMMISSIONER SIDNEY LINDEN: She can be
1791 asked what she may have done or said, not about what she 2 thought according to the meeting. She could be asked 3 that, which is what I think Mr. Millar is suggesting as 4 well, but nothing beyond that. 5 MR. WILLIAM HENDERSON: All right. Well, 6 I'm just trying to make it clear what Im doing, 7 Commissioner, so that, you know. 8 COMMISSIONER SIDNEY LINDEN: Well, I 9 don't think it's necessary. I think everybody has an 10 idea. 11 MR. WILLIAM HENDERSON: Well, I'd have a 12 better idea if some of the other people who are going to 13 give witnesses had disclosed to us what they were going 14 to say. But you know, we're basically going in the -- 15 you know -- 16 COMMISSIONER SIDNEY LINDEN: Well -- 17 MR. WILLIAM HENDERSON: -- in the blind 18 here. We know there was one end of the chain. Now maybe 19 that's the whole chain. 20 COMMISSIONER SIDNEY LINDEN: Well, I 21 think we just need to ask her what she knows or what she 22 did or what she said. 23 MR. WILLIAM HENDERSON: That's what I 24 did. 25 COMMISSIONER SIDNEY LINDEN: Yes.
1801 MR. WILLIAM HENDERSON: All right. 2 3 CONTINUED BY MR. WILLIAM HENDERSON: 4 Q: Do you recall conveying to anyone the 5 tone, tenor, forcefulness of the position that was 6 brought to that meeting to someone who wasn't there? 7 A: It is possible that I communicated 8 with somebody after the meeting and that that was 9 overheard by somebody and indicated that there was 10 tension and that there -- there was a certain 11 assertiveness expressed that was surprising to me from 12 the representative of the Premier's office. 13 Q: Okay. Now, after the meeting on the 14 5th, and including prior to the Interministerial meeting 15 on the 6th, would it be fair to say that you would have 16 communicated that to Mr. Taman or to Yan Lazor as part of 17 the natural briefing -- 18 A: Yes. 19 Q: -- saying, you know, we had -- 20 A: Yes. 21 Q: -- a rough meeting or something -- 22 A: Yes, that -- 23 Q: -- like that? 24 A: -- could have -- 25 Q: I'm not --
1811 A: that -- 2 Q: That's what you're saying? 3 A: Exactly, yes. That would have been 4 something that I would have communicated to Yan Lazor in 5 briefing him on what had happened at the meetings. 6 Q: Okay. And would that have been 7 passed along to Larry Taman as well, the deputy Minister 8 when you briefed him? 9 A: When I briefed Larry just prior -- 10 that was just prior to going in and meeting the Minister 11 on September -- the morning of September the 6th, I would 12 have briefed him on the views of the Premier's office, 13 yes. 14 Q: And when you met with the minister 15 did you convey any of that to the minister? 16 A: I believe so. 17 Q: Okay. Thank you, Ms. Jai, those are 18 my questions. 19 20 (BRIEF PAUSE) 21 22 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 23 Horton? 24 25 CROSS-EXAMINATION BY MR. WILLIAM HORTON:
1821 Q: Ms. Jai, my name is Bill Horton, I'm 2 here for Chiefs of Ontario. 3 A: Yes. 4 Q: Don't worry about the binders, I hope 5 never to refer to them and I hope only to be a relatively 6 few moments. 7 I do want to go over some ground we've 8 been over before but it is important ground and I just 9 want to be clear about certain things that you might not 10 be able to take exactly from the notes or that you might 11 not have exactly put in those words, but I want to see 12 whether or not that is your -- your evidence. 13 A: Okay. 14 Q: Okay? So, I'm focussing on three (3) 15 meetings, the meeting of August the 2nd and the meeting 16 of September 5th and the meeting of September 6th which 17 everyone's been talking about, the IMC meetings. 18 A: Yes. 19 Q: And at those meetings, without going 20 to them specifically, I can if you want to, certainly 21 there's evidence that you've given and others have given 22 that some people at those meetings were advocating what I 23 will call a measured approach. 24 A: Yes. 25 Q: Is that correct?
1831 A: Yes. 2 Q: And some people at those meetings 3 were advocating not overreacting to the situation and 4 being patient; is that correct? 5 A: Yes. 6 Q: And, for example, Ron Fox was 7 advocating that? 8 A: Yes. 9 Q: And also to a degree I got the 10 impression that that was either a position that ONAS was 11 advocating or was sympathetic to? 12 A: Yes. 13 Q: Now, we know that there was a 14 consensus at each of these meetings that -- that you 15 recorded. 16 A: Yes. 17 Q: But it is very important for us to 18 know specifically what was said by Ms. Hutton, apparently 19 on behalf of the Premier, at these three (3) meetings and 20 I just want to be clear. 21 Correct me if I'm wrong, my impression is 22 that at no time in any of those three (3) meetings did 23 Ms. Hutton advocate a measured approach or a patient 24 approach or the idea of not overreacting? 25 A: That's correct.
1841 Q: And indeed to the extent that there 2 was discussion on those issues I have the impression that 3 it was Ms. Hutton reacting against those ideas? 4 A: Yes. 5 Q: Is that -- am I correct? Now, also 6 we do know that the consensus at these meetings, at least 7 the September 5 and September 6 was that an injunction 8 would be sought and we know that there was considerable 9 discussion about an injunction at those two (2) meetings 10 in particular; is that correct? 11 A: Yes. 12 Q: All right. Now, my impression of 13 your evidence is that Deb Hutton, on behalf of herself 14 apparently, on behalf of the Premier, was advocating the 15 objective of getting the occupiers out of the Park within 16 a day or two (2), correct? 17 A: Yes. 18 Q: All right. And my impression was 19 that the idea of an injunction was something that others 20 were proposing as a way of dealing with the situation; is 21 that correct? 22 A: Yes. 23 Q: So, in other words Ms. Hutton didn't 24 come to the meeting with the idea that or to present to 25 the meeting the idea that an injunction was the
1851 appropriate response, that was what others were 2 proposing; is that correct? 3 A: Yes. 4 COMMISSIONER SIDNEY LINDEN: Just a 5 minute, I see an objection? 6 MR. PETER DOWNARD: My Friend's 7 misstating the evidence, the evidence is very clear that 8 at the end -- by the end of the September 5th meeting, 9 Ms. Hutton was advocating an injunction, an emergency 10 injunction, I accept. 11 But, she was advocating an injunction, the 12 evidence is very clear on that, both from the Witnesses 13 and in the documents. 14 MR. WILLIAM HORTON: This is grossly 15 improper, Mr. Commissioner. 16 COMMISSIONER SIDNEY LINDEN: Just a 17 minute. I understand. The question was did you come to 18 the meeting with the suggestion -- 19 MR. WILLIAM HORTON: This is grossly 20 improper, Mr. Commissioner, I am not -- I was not 21 summarizing the evidence, I'm asking this Witness what 22 her recollection was of the meetings. 23 I am very familiar with the note that Mr. 24 Downard has just referred to and I'm coming to that note. 25 But my view, and I -- I'm not obliged to hear Mr.
1861 Downard's characterizations of the evidence in the middle 2 of my cross-examination. My view is that that note is 3 very consistent with what I'm saying, and I'm trying to 4 establish that with this Witness. 5 COMMISSIONER SIDNEY LINDEN: So, do you 6 want to repeat that. I see Ms. Perschy's going to make 7 an objection too. Just hold the question, I want to hear 8 the question again. 9 OBJ MS. ANNA PERSCHY: My objection, I 10 started to object to My Friend's question when he was 11 speaking as -- or asking the question as to what Ms. 12 Hutton came to the meeting with. 13 COMMISSIONER SIDNEY LINDEN: Yes, that's 14 what I thought. 15 MS. ANNA PERSCHY: He then rephrased the 16 question with respect to what was said at the meeting, 17 and as Mr. Downard pointed out, at the meeting Ms. Hutton 18 made this reference to the injunction. 19 COMMISSIONER SIDNEY LINDEN: Yes, so 20 that's why I want you to repeat the question to see where 21 we are. 22 23 CONTINUED BY MR. WILLIAM HORTON: 24 Q: I want to be clear, Ms. Jai, that the 25 idea of an injunction did not come from Ms. Hutton?
1871 A: Correct. 2 Q: The idea of an injunction came from 3 others who were at the meeting? 4 A: Yes. 5 Q: And Ms. Hutton was not advocating, in 6 particular, the injunction as a way of dealing with the 7 matter, her point was that the occupiers needed to be out 8 in a day or two (2), correct? 9 A: Yes. 10 Q: And the injunction was merely one (1) 11 of the methods that others were putting forward as to how 12 that objective might be achieved, correct? 13 A: Yes. 14 Q: And indeed, when Ms. Hutton spoke to 15 the subject of the injunction, as Mr. Downard has just 16 mentioned, it was simply to express a preference if there 17 was to be an injunction, that it would be an injunction 18 ex parte, rather than on notice, correct? 19 A: Yes. 20 OBJ COMMISSIONER SIDNEY LINDEN: Now you are 21 getting another objection, I'm not sure what the nature 22 of this is? 23 MS. ANNA PERSCHY: It's just a 24 clarification in terms of the -- in terms of the two (2) 25 meetings. My Friend made reference to the comment
1881 regarding a day or two (2), that's -- that's referred to 2 in the notes as occurring on September the 6th. 3 And then this -- this other comment is -- 4 is referred to in the notes as occurring on the 5th, and 5 I'd just appreciate it if My Friend be very careful as to 6 which meeting he's referring to in posing questions to -- 7 to this Witness with regards to what was said at the 8 meeting. 9 MR. WILLIAM HORTON: Mr. Commissioner, 10 these notes are subject to all sorts of interpretation. 11 COMMISSIONER SIDNEY LINDEN: Yes, well 12 what -- 13 MR. WILLIAM HORTON: And what I'm trying 14 to get from this Witness is her independent recollection, 15 and she's very familiar with her own notes of those 16 meetings. 17 COMMISSIONER SIDNEY LINDEN: Yes. But a 18 good deal of attention has been paid to the meeting of 19 September the 5th -- 20 MR. WILLIAM HORTON: Right. 21 COMMISSIONER SIDNEY LINDEN: -- and the 22 meeting of September the 6th. 23 MR. WILLIAM HORTON: Right. Right. 24 COMMISSIONER SIDNEY LINDEN: So, we're 25 dealing with one (1) or the other or both --
1891 MR. WILLIAM HORTON: Right. 2 COMMISSIONER SIDNEY LINDEN: -- however 3 you are dealing with it, you should be clear. 4 MR. WILLIAM HORTON: Well, I'm dealing 5 with them both, Mr. Commissioner. 6 COMMISSIONER SIDNEY LINDEN: That's fine. 7 MR. WILLIAM HORTON: And -- and what I'm 8 suggesting to the Witness is that her recollection as 9 assisted by the notes is simply as I've put it, that Ms. 10 Hutton's, when she expressed an opinion on the 11 injunction, it was with respect to it being done on an ex 12 parte basis, rather than it being done on a normal basis 13 with notice. 14 COMMISSIONER SIDNEY LINDEN: Right. 15 MR. WILLIAM HORTON: And I think the 16 Witness has agreed with me on that? 17 COMMISSIONER SIDNEY LINDEN: Yes. 18 THE WITNESS: Yes. 19 20 CONTINUED BY MR. WILLIAM HORTON: 21 Q: And in fact, as I understand your 22 evidence, Ms. Jai, the injunction was discussed in the 23 context of a number of different options. 24 A: Yes. 25 Q: And Ms. Hutton was reacting to those
1901 options on the basis of whatever's going to work to 2 achieve the objective of getting the occupiers out within 3 a day or two (2); is that fair? 4 A: Yes. 5 Q: Now, the third point that I want to 6 get to with respect to these meetings is the issue of OPP 7 discretion, and I know that's being done ad nauseam. 8 But again with respect to Ms. Hutton, and 9 I'll start this, first of all, just with the general 10 reference, on August the 2nd at that IMC meeting, it was 11 clearly discussed and minuted that it was up to the OPP 12 to decide what to do with respect to criminal charges and 13 operations; isn't that correct? 14 15 (BRIEF PAUSE) 16 17 A: Well, I'm looking at the minutes now 18 because -- 19 Q: Yes. 20 A: -- I want -- it's when you say it was 21 "clearly minuted" I would like to actually look and make 22 sure that it was clearly minuted. 23 Q: And I'll -- and I can give you the 24 reference if you need it. 25 A: I may --
1911 Q: It's Tab 14. 2 A: Yes. 3 Q: Of our material. 4 A: I have it as Tab 16 of the 5 Commissioner's binder. Are we referring to the meeting 6 notes of August 2nd, Exhibit P-506? 7 8 CONTINUED BY MR. WILLIAM HORTON: 9 Q: Those handwritten notes are at Tab 14 10 and I think there are also minutes that say, the OPP and 11 MNR will take whatever action is necessary on the ground. 12 A: Right. 13 Q: Yeah. 14 A: Right, and the official minutes say: 15 "It was agreed that MNR and OPP staff 16 are in the best position to monitor the 17 Stoney Point group's activities and 18 assess the risk." 19 I mean that's what -- it also says in the 20 official minutes: 21 "MNR and the OPP will respond 22 appropriately in a measured way should 23 any further problems arise." 24 Q: I'm told that P-506 is the typed 25 minutes.
1921 A: Yes. I thought that's what you were 2 referring to when you said the official minutes. 3 Q: Mr. Millar just wanted me to give 4 the -- 5 MR. DERRY MILLAR: I just wanted it for 6 the record. 7 COMMISSIONER SIDNEY LINDEN: The Exhibit 8 number is 506. 9 MR. DERRY MILLAR: Yes. 10 COMMISSIONER SIDNEY LINDEN: Yes. And 11 this paragraph that Ms. Jai referred to is at page 5 of 12 the minutes. 13 THE WITNESS: And it also says on the 14 very last sentence, on page 5, 15 "It was agreed that the Committee will 16 reconvene if an actual incident at 17 Ipperwash occurs, but that MNR and OPP 18 staff on the ground do not need to wait 19 for the Committee's approval before 20 taking actions that are necessary to 21 protect public safety." 22 23 CONTINUED BY MR. WILLIAM HORTON: 24 Q: Right, okay. And this issue did come 25 up again on the meeting of September 5th?
1931 A: Yes. 2 Q: And it was again confirmed and it was 3 minuted that it's up to the OPP to take appropriate 4 action on the ground? 5 A: Yes. 6 Q: And then it came up again on 7 September the 6th? 8 A: Yes. 9 Q: Is that correct? 10 A: Yes. 11 Q: And on September the 6th, I won't 12 take you to your -- your summary, but you did a -- you 13 did a separate report by e-mail in which you made the 14 point that the fact that it's up to the OPP discretion 15 was only agreed to after much discussion? 16 A: Yes. 17 Q: And in fact, in your e-mail, I won't 18 again take you to it, but you said, "after much 19 discussion". And then I noted that when you testified on 20 this, Ms. Jai, you emphasised it and said, "only after 21 much discussion." 22 A: Hmm hmm. 23 Q: Did you -- do you recall actually -- 24 A: Yes, I recall that 25 Q: -- emphasising that?
1941 A: Yes, I do. 2 Q: And what you were trying to 3 emphasise, as I understand it, was that there was a very 4 lively discussion about that point at the September 6th 5 meeting; that's your recollection? 6 A: Yes. 7 Q: And my impression, correct me if I'm 8 wrong, is that that lively discussion occurred because of 9 the views and being expressed by and the attitude of Ms. 10 Hutton on behalf of the Premier's office at that meeting? 11 A: Yes. 12 Q: And that what was being conveyed by 13 Ms. Hutton at that meeting was actually the fact that the 14 Government wanted to be seen as controlling the 15 situation? 16 A: Yes. 17 Q: And in fact wanted to control the 18 situation? 19 A: Yes. 20 Q: And, specifically, for the purpose of 21 getting the occupiers out within a day or two? 22 A: Yes. 23 Q: And as you've already testified 24 whatever the agreement was at the end of that meeting you 25 did not hear Ms. Hutton say anything different at any
1951 point in time in that meeting; isn't that correct? 2 A: Right. She didn't say that she 3 disagreed with the consensus -- 4 Q: No. 5 A: -- that I had been trying to pull 6 together and that I -- 7 Q: Right. 8 A: -- summarized at the end of the 9 meeting. 10 Q: But, you had to pull together some 11 sort of consensus from the meeting and you did that? 12 A: Yes. 13 Q: Correct? 14 A: Yes. 15 Q: But Ms. Hutton did not expressly 16 retract any of the comments that she had made earlier in 17 the meeting; is that correct? 18 A: That's correct. 19 Q: And in fact, Ms. Jai, everybody 20 understood that the purpose of the meeting was -- I'm 21 going to -- I'm going to put it that way, if Mr. Downard 22 wants to object, it was -- 23 COMMISSIONER SIDNEY LINDEN: Mr. Downard 24 is sitting down -- 25 MR. WILLIAM HORTON: Let me -- let me
1961 just -- 2 COMMISSIONER SIDNEY LINDEN: All right. 3 Finish your question. 4 MR. WILLIAM HORTON: I'd like to finish 5 the question because I think -- I think it is a proper 6 question. 7 8 CONTINUED BY MR. WILLIAM HORTON: 9 Q: It was a common understanding that 10 the purpose of those meetings was to make 11 recommendations? 12 A: Yes. 13 Q: Right. And so therefore, to some 14 extent, if the Government wanted to do something 15 different, if the Premier wanted to do something 16 different, they didn't have to persuade the IMC of that? 17 A: Right. 18 Q: And one (1) of the ways that this -- 19 much discussion evolved was around the issue of asking 20 rather than telling as I understand it? 21 A: Yes, the -- that was one (1) of the 22 discussion points. 23 Q: And the discussion point with 24 reference to that was telling the OPP to remove the 25 occupiers as opposed to asking them to remove the
1971 occupiers, correct? 2 A: Right. 3 Q: And now, we have heard, or seen some 4 evidence and I expect we will see more evidence before 5 the Inquiry is over about the fact that actually, if the 6 OPP acts in terms of enforcing the Criminal Code or 7 something of that nature using force, enforcing the 8 Criminal Code, that that might play against being able to 9 persuade a court to grant an injunction. 10 I don't know if -- I'm -- it doesn't 11 matter to me whether you -- 12 A: Hmm hmm. 13 Q: -- recall that or not although I will 14 ask you whether or not you recall that being discussed at 15 the meeting? 16 A: There was a discussion of that, yes. 17 Q: All right. And -- and that's because 18 if the -- if the police are already involved and the 19 Criminal Code is already involved, the Court may not be 20 persuaded that an injunction is necessary. 21 A: That's possible. 22 Q: All right. So, that in fact when 23 these discussions were held about the Criminal Code or 24 the injunction, or negotiations, these were not 25 necessarily complimentary courses of action?
1981 A: Right. 2 Q: All right. 3 A: I -- I mean, just to clarify that, I 4 mean you could have different courses of action following 5 on parallel tracks, but it's possible that the taking -- 6 following one (1) track would have a negative impact on 7 the effectiveness -- 8 Q: Right. 9 A: -- of the other track. 10 Q: Right. And in assessing these 11 different tracks, options, whatever, it was very clear in 12 your mind based on what Ms. Hutton was saying at the 13 meeting that all options were being judged against the 14 objective of getting the occupiers out in a day or two 15 (2), correct? 16 A: Yes. 17 Q: And that as far as the Government was 18 concerned no options were being ruled out that might 19 achieve that objective? 20 A: Yes. 21 Q: Now... 22 23 (BRIEF PAUSE) 24 25 Q: Ms. Jai, I just wanted to ask you
1991 about your recommendations because you did make two (2) 2 recommendations to the Commissioner. And your second 3 recommendation was a recommendation with respect to the 4 occupiers keeping lines of communication open. You'll 5 recall that. 6 And you did make a specific reference in 7 saying that to the fact that the meeting that was 8 supposed to happen on the 6th didn't happen? 9 A: Yes. 10 Q: And I -- I want to ask you some 11 questions just to make sure that -- well, to find out 12 really whether -- how much emphasis you're putting on 13 that, and also put it in the context of ONAS and how ONAS 14 would approach these kinds of situations. 15 We do know that the meeting didn't take 16 place on September the 6th, and we do know that that 17 evening Dudley George died. We know those facts. 18 A: Yes. 19 Q: But, I did not understand you to be 20 saying that Dudley George died because the meeting didn't 21 -- that meeting didn't take place, I -- 22 A: Right. That's not what I was saying. 23 Q: No, I didn't think so. And looking 24 at the fact that the meeting didn't take place, in terms 25 of trying to pursue a communication strategy to diffuse
2001 and deal with these types of situations, you'll agree 2 with me that one cannot be deterred by the fact that a 3 meeting failed to take place? 4 One has to persevere even if a meeting 5 doesn't take place? 6 A: Well, if your goal is to communicate 7 with people, then certainly perseverance is important. 8 Q: Yeah. 9 A: In this case we had not agreed to a 10 point, of facilitator or negotiator because of -- for 11 the -- 12 Q: Yeah. 13 A: -- reasons discussed earlier. So, we 14 didn't have an actual, you know, communication strategy 15 or a person whose job it was to try to communicate. So, 16 as a result, the thing that we were relying on was the 17 meeting, and when it didn't take place, we then lost the 18 opportunity to gain valuable information. 19 So, had there been somebody in place, 20 whose job was to commun -- communicate and to be a 21 facilitator or/negotiator, I would have expected that 22 person to persevere beyond one (1) cancelled meeting. 23 Q: Right. Thank you very much for that 24 answer, even though -- well, it made me realize that I 25 had not made myself clear in asking the question. But, I
2011 think what you've just said is extremely valuable 2 nonetheless. 3 I was not asking the question in order to 4 be critical of ONAS in not persevering. I was trying to 5 assess your recommendation as a recommendation for the 6 future. And when you refer specifically to the fact that 7 a meeting didn't take place, for the future, in different 8 circumstances that might arise, obviously, it's possible 9 in communications that things go wrong? 10 A: Yes. 11 Q: Somebody can't show up for a 12 particular reason that you find out about later? 13 A: Right. 14 Q: It happens to all of us. 15 A: Right. 16 Q: Also, neither side has perfect 17 knowledge in these situations of what's going on in the 18 other -- on the other side. 19 A: Yes. 20 Q: For example, the occupiers would not 21 have known anything of what all the important -- 22 A: Right. 23 Q: -- factors that you just mentioned, 24 about the Government saying there'll be no negotiation -- 25 A: Hmm hmm.
2021 Q: -- and you know, all of those things 2 you mentioned, would not necessarily be things that the 3 occupiers were familiar with? 4 A: Right. I'm not faulting the 5 occupiers for not coming to that meeting. What my 6 recommendation was oriented towards was just expressing 7 the importance of communication -- 8 Q: Yes. 9 A: -- on both sides. 10 Q: Absolutely. 11 A: For example, the occupiers could have 12 communicated prior to the occupation that they intended 13 to occupy the Park for the following reasons, and then 14 said, our spokesperson is X, if you want to discuss this 15 with us. You know, that would have greatly facilitated 16 communications. 17 Q: Sure. And -- and also, if that 18 doesn't happen, that it may not be that the occupiers are 19 operating in bad faith or, you know, in some sense 20 negligently, there may be reasons for that, that are 21 worth knowing about, if it doesn't happen? 22 A: Yes. 23 Q: For example, they -- when -- and 24 we've heard this directly, a concern that the -- that a 25 leader would be targeted by the police or that sort of
2031 thing. 2 So, it would be part of the communications 3 to try to find out what the obstacles to communications 4 are, correct? 5 A: Yes. 6 Q: And try to deal with them through 7 giving the occupiers or the other group some sort of 8 reassurances that their concerns are not well founded or 9 to engage in some confidence building measures? 10 I mean, that's all part of a communication 11 strategy, correct? 12 A: Yes. 13 Q: And that's one of the things that was 14 lacking here? 15 A: Yes. 16 Q: Because ONAS was specifically told 17 not to engage in that exercise? 18 A: Yes. 19 Q: Thank you, Ms. Jai. Those are my 20 questions. 21 COMMISSIONER SIDNEY LINDEN: Thank you 22 very much. 23 Yes, Mr. Roy...? 24 25 (BRIEF PAUSE)
2041 MR. JULIAN ROY: I need a trolley or 2 something with this Witness, Mr. Commissioner, for all 3 the books. 4 COMMISSIONER SIDNEY LINDEN: Well, I know 5 it's difficult to be the last one to go, Mr. Roy. 6 MR. JULIAN ROY: It is. 7 COMMISSIONER SIDNEY LINDEN: But, I'm 8 hoping that you do not have to repeat a lot of the cross- 9 examination that's already occurred. 10 MR. JULIAN ROY: I don't have a lot of 11 documents to go through, but they're -- they're in three 12 (3) different books. 13 COMMISSIONER SIDNEY LINDEN: Well -- 14 MR. JULIAN ROY: So, that's life. 15 16 (BRIEF PAUSE) 17 18 MR. JULIAN ROY: Good afternoon, Mr. 19 Commissioner. 20 COMMISSIONER SIDNEY LINDEN: Good 21 afternoon. 22 23 CROSS-EXAMINATION BY MR. JULIAN ROY: 24 Q: Good afternoon, Ms. Jai. And I'm 25 pronouncing your name right?
2051 A: Yes. 2 Q: Okay. My name is Julian Roy; I'm 3 Counsel to Aboriginal Legal Services Toronto, and I'm the 4 last significant questioner of you, so I'm sure that's of 5 great relief to you. 6 And I'm hopeful that we can perhaps be 7 finished today. That's my hope. But, I -- we'll see how 8 far we get. 9 A: Okay. 10 Q: We're scheduled to break at 4:30, and 11 that's in the Commissioner's hands, but I'm hopeful to 12 get you out of here today, if I can, but -- 13 COMMISSIONER SIDNEY LINDEN: If we have 14 to go a little longer to finish, I would like to finish 15 today -- 16 MR. JULIAN ROY: All right, well -- 17 COMMISSIONER SIDNEY LINDEN: We still 18 have Ms. Twohig to go after you're finished. 19 MR. JULIAN ROY: Yes. Well, as we get 20 closer to 4:30 I'm happy to advise you as to where I 21 think I'm at. 22 MS. KIM TWOHIG: I'm obviously not 23 significant -- 24 COMMISSIONER SIDNEY LINDEN: No -- 25 MS. KIM TWOHIG: -- but I appreciate that
2061 you recognize the opportunity that I have. Thank you. 2 COMMISSIONER SIDNEY LINDEN: You're very 3 significant, Ms. Twohig. I want to reassure you -- 4 assure you, you're very significant. 5 MR. JULIAN ROY: I meant significant in 6 terms of -- 7 COMMISSIONER SIDNEY LINDEN: I 8 understand. I'm sure we all do. 9 MR. JULIAN ROY: I have the highest 10 regard for Ms. Twohig. I hope I didn't convey anything 11 otherwise. 12 13 CONTINUED BY MR. JULIAN ROY: 14 Q: I want to -- I want to start by 15 asking you some more questions about the briefing of Mr. 16 Harnick on the morning of September 6th. 17 A: Yes. 18 Q: And the events that lead up to that 19 and what happens right after the briefing. I have -- 20 A: Yes. 21 Q: I apologise, I am going not be 22 covering some ground that others have covered, but just 23 from a -- from a different perspective and I -- I promise 24 you there is a point to it. 25 COMMISSIONER SIDNEY LINDEN: Well, we'll
2071 see where it goes. 2 MR. JULIAN ROY: You seem sceptical, Mr. 3 Commissioner. 4 COMMISSIONER SIDNEY LINDEN: Well, I'm 5 anxious to avoid covering ground that's already been 6 covered, so we'll -- 7 MR. JULIAN ROY: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- see where 9 you're going with this. 10 MR. JULIAN ROY: Yes. 11 12 CONTINUED BY MR. JULIAN ROY: 13 Q: Now, you briefed, of course, Mr. 14 Harnick on the morning of September 6th at 8:30 in the 15 morning. 16 A: Yes. 17 Q: Just to locate us all. And the point 18 of that meeting was to convey the advice or rather the -- 19 the Legal Sub-Committee what they've decided the advice 20 was going to be to the Minister with respect, in part, 21 with respect to an injunction; is that correct? 22 A: Well, it was both the Legal Sub- 23 Committee's recommendation and the recommendation -- the 24 general recommendation of the Interministerial Committee. 25 Q: So, there's two (2) aspects to it.
2081 There's the broader Interministerial Committee meeting of 2 September 5th, that's part of the briefing, correct? 3 A: Right. 4 Q: And the other part of the briefing, 5 which is no less significant, is the Legal Sub-Committee 6 meeting -- 7 A: Right. 8 Q: -- that happens right after the main 9 meeting -- 10 A: Yes. 11 Q: -- is that correct? 12 A: And I guess, in my role as legal 13 director of ONAS, I would be the person who would be 14 responsible for giving the Minister legal advice. I 15 would be the most senior person responsible for advising 16 him on Aboriginal issues -- 17 Q: Yes. 18 A: -- from a legal perspective. 19 Q: So, it would have been your 20 responsibility as Chair of the IMC but also as Chair of 21 the -- 22 A: Well, as legal director. 23 Q: Yes. And as Chair of the Legal 24 Sub-Committee also? 25 A: Yes.
2091 Q: It would be your responsibility to 2 understand what the Legal Sub-Committee had decided in 3 terms of the advice to the Minister? 4 A: Yes. 5 Q: And also to convey that advice 6 accurately to the Minister, correct? 7 A: Yes. 8 Q: And you took that responsibility very 9 seriously and you did your best to do that? 10 A: Yes. 11 Q: And your clear recollection is that 12 the advice you gave your minister was that an injunction 13 was to be obt -- your advice was that an injunction ought 14 to be obtained to support the OPP, correct? 15 A: Yes. 16 Q: And that that injunction was to be 17 obtained in the ordinary course on an expedited basis; is 18 that correct? 19 A: Right. 20 Q: In other words, not an ex parte 21 injunction, correct? 22 A: Right. 23 Q: And that aspect of the advice, with 24 respect to it not being an ex parte injunction, you were 25 primarily relying on Mr. McCabe in giving that advice to
2101 the Minister; is that correct? 2 A: Yes, but once Mr. McCabe had 3 explained to me the legal tasks or the threshold that you 4 would have to meet then I could also come to my own 5 conclusion as a lawyer as to the likelihood of succeeding 6 on an ex parte basis or not and I agreed with Mr. 7 McCabe's conclusion that the chances of success were 8 small. 9 Q: Okay. In -- in light of the fact 10 that the chances for success were small, Mr. McCabe was 11 clear to you at the subcommittee meeting that his advice 12 was a regular injunction and not an ex parte injunction, 13 correct? 14 A: Yes. 15 Q: And he was able to give you the basis 16 for that advice and it was persuasive to you, correct? 17 A: Yes. 18 Q: And you conveyed that advice to Mr. 19 Lazor first; is that correct? 20 A: Yes. 21 Q: And you were accurate in the way you 22 conveyed that advice to Mr. Lazor? 23 A: Yes. 24 Q: You -- you weren't soft pedalling Mr. 25 McCabe's advice about his --
2111 A: No. 2 Q: -- feeling that it was to be not an 3 ex parte injunction? 4 A: I -- I was accurate in my briefing of 5 Yan. 6 Q: And the -- and you also briefed Mr. 7 Taman about that before speaking to Mr. Harnick? 8 A: Yes. 9 Q: Yeah. And you were equally accurate 10 in -- in -- 11 A: I believe so. 12 Q: -- conveying that. Now, when you met 13 with Mr. Harnick it was you that personally delivered the 14 part of the briefing that related to the type of 15 injunction, correct? 16 A: Yes. 17 Q: And it was clear from the meeting 18 that the -- that that was a fork in the road that had to 19 be decided, the type of injunction, correct? 20 A: Yes. 21 Q: It wasn't just something that -- that 22 sailed by in the meeting, correct? 23 A: It was very -- it was clear to me, it 24 may have been less clear to Minister Harnick simply 25 because I had spent all of these hours --
2121 Q: Yes? 2 A: -- focussing on the distinctions 3 between these two (2) types of injunctions, whereas we 4 were only with Mr. Harnick for, perhaps, ten (10) 5 minutes -- 6 Q: Yes. 7 A: -- and we were briefing him on the 8 fact situation as well as get -- seeking his direction on 9 the injunction so that the amount of time we actually 10 spent talking about the injunction was probably only a 11 minute or two (2). 12 Q: Okay. But in that minute or two (2) 13 one (1) of the main issues was the type of injunction, ex 14 parte -- 15 A: Yes. 16 Q: -- or not ex parte? 17 A: Yes. 18 Q: And you drew that distinction to his 19 attention and briefed him on it -- 20 A: Yes. 21 Q: -- and gave him advice that it was to 22 not be an ex parte injunction? 23 A: Yes. 24 Q: Did you refer to Mr. McCabe when you 25 were giving advice to Mr. Harnick in that regard?
2131 A: I can't remember if I referred 2 specifically to Mr. McCabe, but I referred to the legal 3 subgroup or, you know, just the fact that it was not just 4 my opinion but this subgroup of experts in the area. So, 5 I don't know if I referred to Mr. McCabe by name. 6 Q: Okay. Now, until the time that you 7 heard from Ron Fox that there'd been a change of plan and 8 it was now going to be an ex parte motion, between the 9 time that you left the briefing for Mr. Harnick and that 10 time when you heard from Ron Fox, are you aware of any 11 other briefing of any kind with respect to the 12 injunction -- 13 A: No. 14 Q: -- from Mr. Harnick? 15 A: No. 16 Q: Okay. And you would expect that you 17 would -- you would know about that because you were the 18 point person, correct? 19 A: It's possible there would have been 20 other meetings, for example, between the Deputy and 21 Minister Harnick that -- 22 Q: Okay. 23 A: -- I wouldn't have necessarily been 24 involved in. 25 Q: But certainly other civil service
2141 staff below the deputy, you weren't aware of any other 2 communication with or briefing of Mr. Harnick, correct? 3 A: Correct. 4 Q: And you would expect that if that 5 happened you would know about it, correct? 6 A: Given the rush circumstances it's 7 possible that there could have been briefings that I was 8 not made aware of. 9 Q: Okay. Now, in any event after the 10 meeting you attended the main meeting of the 11 Interministerial Committee on September 6th, correct? 12 A: Yes. 13 Q: And one (1) of the first things that 14 you did is you conveyed Minister Harnick's direction to 15 Mr. McCabe, concerning the injunction, correct? 16 A: Well I might -- I don't -- I can't -- 17 that's a complex question. At the meeting itself I 18 communicated what Mr. Harnick's direction was from my 19 briefing, like I debriefed the Committee on my briefing 20 of Minister Harnick. 21 That occurred later in the meeting. I 22 probably had just a quick discussion with Tim McCabe as 23 we were coming into the meeting or something. 24 Q: That's what I thought I heard in your 25 evidence.
2151 A: Yeah. So, that was not at the 2 meeting itself, it was kind of prior to the meeting or -- 3 Q: Yes. 4 A: -- as we were going into the meeting. 5 Q: And you were telling him that -- that 6 the advice that you were giving, that he was obviously 7 aware you were giving to Mr. Harnick about the -- the 8 type of injunction, you were confirming with him that 9 that advice had been -- that Mr. Harnick had -- 10 A: Right. 11 Q: -- signed off on it? 12 A: That he had agreed with our 13 recommendation -- 14 Q: And that -- 15 A: -- to go for an injunction with 16 notice -- trying to get before a judge on Friday. 17 Q: Okay. And then, I don't want to take 18 you to the note of a meeting, but -- but do you recall 19 from the September 6th -- the general meeting of the 20 Interministerial Committee, that Mr. McCabe reiterated 21 his position about the type of injunction that was going 22 to be obtained, and then the reasons for it, correct? 23 A: Yes. 24 Q: And at no time during that meeting 25 did you hear Mr. McCabe change his opinion about the
2161 nature of the injunction to be obtained? 2 A: Correct. 3 Q: Yeah. And you didn't hear that from 4 Mr. McCabe after the meeting and before you heard from 5 Ron Fox, correct? 6 A: Correct. 7 Q: Now, the reason why I'm asking you 8 all this, is because I want to put to you some 9 anticipated evidence from Mr. Harnick. 10 A: Hmm hmm. 11 Q: In terms of answers he gave in the 12 Legislature on August 20th of 1997. This is one (1) of 13 the documents in Mr. Klippenstein's brief. It's 14 documents 1 and 2 of his -- of his big brief. 15 Mr. Klippenstein gave notice of -- of 16 concerning these documents last week sometime, and we've 17 -- we've notified counsel that we intend to rely on. 18 MR. PETER DOWNARD: I don't happen to 19 have a copy, if My Friend has a copy for counsel, that 20 might be of assistance? 21 MR. JULIAN ROY: I don't. 22 MR. PETER DOWNARD: It's an internet 23 document, there might be a URL we can use to get it off 24 the internet. 25 THE WITNESS: What tab is it at that -- I
2171 have that binder, it didn't -- 2 MR. JULIAN ROY: It's in Tab 1, it's in 3 Mr. Klippenstein's large binder, if you recall there's a 4 large one (1) and there's a skinny one (1)? 5 THE WITNESS: Yes, it does have a URL at 6 the top. 7 MR. JULIAN ROY: It's a rather long URL-- 8 THE WITNESS: Yes, it is. 9 MR. JULIAN ROY: -- Mr. Commissioner, I 10 can read it out to counsel if that's what they want but. 11 COMMISSIONER SIDNEY LINDEN: Well, I'm 12 not sure how to proceed. I've got it, but I'm not sure, 13 I assume counsel would like to see what you're referring 14 to. 15 MR. JULIAN ROY: Sure. 16 COMMISSIONER SIDNEY LINDEN: You can't 17 put it -- 18 MR. DERRY MILLAR: In fairness to 19 counsel, Mr. Eyolfson sent around an e-mail last night, I 20 think about -- after at least six or seven o'clock, 21 saying they were going to rely on the documents that 22 everybody else had relied on. 23 And so people don't -- it's a little 24 difficult for people to know what parties are going to 25 rely on, when they do something like that.
2181 MR. JULIAN ROY: Well, I -- I thought the 2 point of the notice was -- was as a courtesy to the 3 Witness, so that the Witness could read the document. I 4 didn't realize that it was something that I had to tip 5 off all counsel as to precisely -- 6 COMMISSIONER SIDNEY LINDEN: Well we'll-- 7 MR. JULIAN ROY: -- what documents I was 8 to use. I didn't understand that that was the point of 9 the notice. 10 COMMISSIONER SIDNEY LINDEN: That's part 11 of it, we're trying to be fair to all counsel -- 12 MR. JULIAN ROY: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- so 14 counsel will know what's happening and -- 15 MR. JULIAN ROY: All right. 16 COMMISSIONER SIDNEY LINDEN: -- whether 17 they are going to have to prepare for it. 18 MR. JULIAN ROY: Well it's -- we're at 19 2:15, and -- and this would ordinarily be time for a 20 break. They're very, very short excerpts in terms of 21 pages. 22 COMMISSIONER SIDNEY LINDEN: Is there any 23 other documents, perhaps whatever -- any other documents 24 that you're going to be referring to that we should -- 25 MR. JULIAN ROY: I don't believe there's
2191 any others that -- there's -- there's also document 2 number 2 from Mr. Klippenstein's thick binder. 3 COMMISSIONER SIDNEY LINDEN: Yes. 4 MR. JULIAN ROY: And then there's a -- 5 the -- the rest of the documents are documents that 6 counsel for -- for the Commission referred to, the big 7 binders. 8 COMMISSIONER SIDNEY LINDEN: These -- 9 MR. JULIAN ROY: And I'm assuming, 10 perhaps optimistically, that all counsel would have -- 11 would have had copies of all those documents -- 12 COMMISSIONER SIDNEY LINDEN: Well at 13 least those are in the database and they can be accessed 14 through the system, but these apparently can't be. So, 15 let's take a short break now and we'll make copies of 16 these and distribute them in the next fifteen (15) 17 minutes; is that all right? 18 MR. JULIAN ROY: It's three (3) pages in 19 total, so -- 20 COMMISSIONER SIDNEY LINDEN: That's fine. 21 It won't take long to do. 22 MR. DERRY MILLAR: The purpose of -- I 23 want to just rise this comment about tip off Counsel. 24 The purpose of the notice requirement is to advise the 25 parties as to what documents --
2201 COMMISSIONER SIDNEY LINDEN: Yes. 2 MR. DERRY MILLAR: -- the specific 3 documents, that's what the rule calls for. 4 COMMISSIONER SIDNEY LINDEN: So, they can 5 prepare. 6 MR. DERRY MILLAR: Yes. So, they can 7 prepare. 8 COMMISSIONER SIDNEY LINDEN: And the 9 Witness, and the Witness. 10 MR. DERRY MILLAR: And those roles apply 11 to ALST as to all the other parties. 12 COMMISSIONER SIDNEY LINDEN: Thank you. 13 MR. JULIAN ROY: Well, I -- 14 COMMISSIONER SIDNEY LINDEN: We'll take a 15 short break -- 16 MR. BASIL ALEXANDER: In any event, Mr. 17 Commissioner, just for the record, those two (2) 18 documents were circulated by Mr. Zbogar as part of an e- 19 mail, as electronic disclosure as part of our circulation 20 of materials for this. 21 MR. JULIAN ROY: Maybe we can just keep 22 going then -- 23 MR. BASIL ALEXANDER: But I just want to 24 be clear that -- 25 MR. JULIAN ROY: -- if it's all available
2211 to everybody. 2 MR. BASIL ALEXANDER: I want to be clear 3 that there is an electronic copy that has been circulated 4 that is -- that I can provide an e-mail and -- 5 COMMISSIONER SIDNEY LINDEN: Oh, okay. 6 MR. BASIL ALEXANDER: -- circulate that, 7 if that is of assistance. 8 COMMISSIONER SIDNEY LINDEN: So, do all 9 Counsel have them now? 10 MR. DERRY MILLAR: I don't know. That's 11 not the point. The point is each party is supposed to 12 circulate a list of the documents they're going to refer 13 to, each party. 14 And most parties -- all parties have done 15 that. ALST, if it's going to refer to specific documents 16 should, as part of its obligations under the rules, do 17 that -- do that. 18 COMMISSIONER SIDNEY LINDEN: I agree with 19 you, Mr. Millar. Now let's move on. 20 MR. JULIAN ROY: Well, I guess I didn't 21 understand that documents that have already received -- 22 there were notice about, that we were to -- we were to 23 send another notice with the same documents and I didn't 24 understand that to be part of the rule and I don't know 25 that other parties are doing that, frankly.
2221 I know that other notices have gone 2 around; we're relying on the documents already referred 3 to. 4 COMMISSIONER SIDNEY LINDEN: Well, I 5 don't want to get into this. Everybody's got the 6 documents; you want to -- 7 MR. JULIAN ROY: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- refer to 9 the documents, let's move on. 10 MR. JULIAN ROY: I apologize. 11 COMMISSIONER SIDNEY LINDEN: In future, I 12 hope that you would, or everybody would, ensure that 13 other Counsel have the documents that you're going to be 14 relying on. 15 MR. JULIAN ROY: Yes, well -- 16 COMMISSIONER SIDNEY LINDEN: Not just the 17 Witness but all parties. 18 MR. JULIAN ROY: Apparently they do, 19 so... 20 COMMISSIONER SIDNEY LINDEN: Okay, if 21 they do then let's go forward. 22 We would normally take a break around -- 23 THE WITNESS: Yes, let's have a break. 24 COMMISSIONER SIDNEY LINDEN: -- around 25 now, so we'll take a break now.
2231 THE REGISTRAR: This Inquiry will recess. 2 3 --- Upon recessing at 2:18 p.m. 4 --- Upon resuming at 2:34 p.m. 5 6 THE REGISTRAR: This Inquiry is now 7 resumed; please be seated. 8 MR. JULIAN ROY: Mr. Commissioner...? 9 COMMISSIONER SIDNEY LINDEN: Yes? 10 MR. JULIAN ROY: I apologize if I 11 appeared testy earlier when I was addressing you. I 12 didn't intend it to be disrespectful in any way. 13 COMMISSIONER SIDNEY LINDEN: No, I 14 understand that. I didn't take -- 15 MR. JULIAN ROY: I just -- 16 COMMISSIONER SIDNEY LINDEN: -- that way. 17 MR. JULIAN ROY: I was a little 18 frustrated and -- 19 COMMISSIONER SIDNEY LINDEN: I didn't 20 take it that way. 21 MR. JULIAN ROY: I apologize. 22 MR. DERRY MILLAR: We need to just wait 23 for Ms. Horvat who's just outside the door. 24 MR. JULIAN ROY: I understand that Ms. 25 Horvat is going to address you on a matter to do with
2241 these and other documents. 2 MR. DERRY MILLAR: And I'm not going to 3 address these. 4 COMMISSIONER SIDNEY LINDEN: Okay. 5 Should we have waited to come in until -- 6 MR. DERRY MILLAR: I didn't realize that 7 she was out there. 8 Well, we can just take a look. 9 10 (BRIEF PAUSE) 11 12 COMMISSIONER SIDNEY LINDEN: You might as 13 well sit down if you -- 14 THE WITNESS: Okay. 15 16 (BRIEF PAUSE) 17 18 MR. DERRY MILLAR: The -- Mr. Harnick -- 19 there was an issue that arose about potential 20 parliamentary privilege and Mr. Harnick, I'm advised by 21 Ms. Horvat, waives the parliamentary privilege. 22 COMMISSIONER SIDNEY LINDEN: I -- I -- 23 OBJ MR. DERRY MILLAR: However, I have a 24 different objection. 25 COMMISSIONER SIDNEY LINDEN: Yes, I --
2251 MR. DERRY MILLAR: The objection is that 2 the -- it is not appropriate to use an out-of-court 3 statement or a statement made by another individual not 4 in the presence of this Witness to cross-examine this 5 Witness. 6 The Witness has given her evidence, the 7 Witness can be asked the question: Did you tell 'A', 'B' 8 or, did you recommend to 'A' course of action 'B' or did 9 anyone in your presence recommend course of action 'B'? 10 And that is the appropriate way to do it, 11 not through a document that has -- this document might be 12 used to cross-examine the -- the person who made the 13 statement, in the appropriate time. 14 COMMISSIONER SIDNEY LINDEN: If it's a 15 different statement? 16 MR. DERRY MILLAR: Yeah, if he makes a 17 different statement. 18 COMMISSIONER SIDNEY LINDEN: In cross- 19 examination. 20 MR. DERRY MILLAR: But not to use to 21 cross-examine this Witness. 22 COMMISSIONER SIDNEY LINDEN: So, whether 23 it's Parliamentary privilege, or whether it's waived is 24 not -- 25 MR. DERRY MILLAR: Well it doesn't
2261 matter. 2 COMMISSIONER SIDNEY LINDEN: -- relevant. 3 MR. DERRY MILLAR: The whole -- the -- 4 it's not an issue of Parliamentary privilege, it's an 5 issue of what's the appropriate way to use the document. 6 COMMISSIONER SIDNEY LINDEN: What was 7 your intention, Mr. Roy, what were you planning to do? 8 MR. JULIAN ROY: Well, it's the rule in 9 Brown v. Dunn, in my respectful submission, that requires 10 if there's an account -- 11 MR. DERRY MILLAR: That's absolute 12 nonsense. This is not -- 13 MR. JULIAN ROY: Can I finish? 14 MR. DERRY MILLAR: The rule in Brown v. 15 Dunn -- no, the rule in Brown v. Dunn -- 16 MR. JULIAN ROY: Let me finish my 17 submission. 18 MR. DERRY MILLAR: Okay. 19 MR. JULIAN ROY: Sir -- 20 COMMISSIONER SIDNEY LINDEN: Well, go 21 ahead, finish your submission. 22 MR. JULIAN ROY: The rule in Brown v. 23 Dunn requires that when a contrary account -- when you 24 anticipate that there is going to be a contrary account 25 given in a proceeding to evidence that a witness has
2271 already given, that directly bears on the conduct of that 2 witness. 3 For example, I anticipate, having read Mr. 4 Harnick's statements in the Legislature, that I expect 5 that his evidence is going to be that Government lawyers 6 told him to have -- that an ex parte injunction was to be 7 obtained. 8 COMMISSIONER SIDNEY LINDEN: Well -- 9 MR. JULIAN ROY: That was their advice, 10 and that -- and the only person that was giving that 11 advice was Mr. Taman -- 12 COMMISSIONER SIDNEY LINDEN: I don't 13 believe this is -- 14 MR. JULIAN ROY: -- and this Witness. 15 COMMISSIONER SIDNEY LINDEN: -- a proper 16 case for the application of the rule in Brown v. Dunn. 17 So, if you have any other reason to use it I'll be happy 18 to hear it? 19 MR. JULIAN ROY: The -- I would draw -- 20 COMMISSIONER SIDNEY LINDEN: I don't 21 think it's proper. 22 MR. JULIAN ROY: -- I would draw an 23 analogy -- oh, I'm sorry, Mr. Commissioner. 24 COMMISSIONER SIDNEY LINDEN: I don't 25 think it's proper to use this particular transcript to
2281 cross-examine Ms. Jai. 2 MR. JULIAN ROY: It would -- it's no 3 different, in my respectful submission, than what Ms. 4 Perschy did, and no different than -- 5 COMMISSIONER SIDNEY LINDEN: You can use 6 this transcript to cross-examine Mr. Harnick when and if 7 he testifies, if he takes the stand. 8 MR. JULIAN ROY: I have a secondary 9 submission. 10 It's no different than the -- than the 11 questioning of Ms. Perschy, wherein she put to this 12 Witness what she anticipates her client's evidence is 13 going to be when that client testifies, there's no 14 difference. 15 COMMISSIONER SIDNEY LINDEN: Ms. Perschy 16 was referring to evidence that the Witness -- 17 MR. JULIAN ROY: She -- she said that she 18 put to the Witness that Ms. Hutton is going to come to 19 this Proceeding and testify that she never said a day or 20 two (2). That's -- that's an account that you anticipate 21 is going to be led or elicited at this Proceeding, and 22 out of fairness to the Witness -- 23 COMMISSIONER SIDNEY LINDEN: Okay. 24 MR. JULIAN ROY: -- and to get the 25 Witnesses comment on it, giving the Witness an
2291 opportunity to comment on it -- 2 COMMISSIONER SIDNEY LINDEN: Well -- 3 MR. JULIAN ROY: -- Mr. Harnick, in his 4 statements in the Legislature, is giving an account of 5 that meeting with this Witness. 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. JULIAN ROY: And out of fairness -- 8 COMMISSIONER SIDNEY LINDEN: -- I think 9 in a general way. You can do that in a general way, I 10 presume, without referring to the documents, without 11 cross-examining on the document, without running into the 12 question of Parliamentary privilege. 13 MR. JULIAN ROY: Well I can -- 14 COMMISSIONER SIDNEY LINDEN: Or anything 15 else. 16 MR. JULIAN ROY: Well, privilege has been 17 waived, first of all. 18 COMMISSIONER SIDNEY LINDEN: No, you 19 don't have to use the document. I would prefer to have 20 you ask questions -- 21 MR. JULIAN ROY: Sure. I can -- I can 22 try to do that. What -- I wanted to use the document 23 because we've heard counsel object on a number of 24 occasions when counsel tried to summarize what's in 25 documents as -- as opposed to quoting them.
2301 COMMISSIONER SIDNEY LINDEN: Yes, well 2 when Mr. Harnick comes you might be able to get to use 3 the document, but not now. 4 MR. DERRY MILLAR: What if they simply 5 ask the question -- 6 COMMISSIONER SIDNEY LINDEN: Well -- 7 MR. DERRY MILLAR: -- that he wants to 8 ask. 9 COMMISSIONER SIDNEY LINDEN: That's what 10 I was trying to say. I mean, did any Government lawyers, 11 in her presence, give advice regarding an ex parte 12 injunction. That's the point you want to make, why don't 13 you simply ask the question. You don't need to refer to 14 this at all. 15 MR. JULIAN ROY: Well I'll -- I'll do my 16 best to capture all the essence of -- of what I expect 17 Mr. Harnick's evidence is going to be at this Proceeding, 18 so that we can have -- 19 COMMISSIONER SIDNEY LINDEN: But not if 20 it's coming -- 21 MR. DERRY MILLAR: Well, but, that's not 22 the issue. The Rule in Brown v. Dunn is -- does not 23 cover this situation. If there was a -- a material 24 issue, that there was going to be evidence that -- that 25 impacted on this Witness's credibility, then perhaps.
2311 This is not a rule in Brown v. Dunn situation, and you've 2 already ruled it and -- 3 COMMISSIONER SIDNEY LINDEN: No, this 4 doesn't affect this Witness's credibility at all -- 5 MR. DERRY MILLAR: And I will say to 6 you -- 7 COMMISSIONER SIDNEY LINDEN: -- it's 8 somebody else's. 9 MR. DERRY MILLAR: -- and you'd already 10 ruled that it's not Brown v. Dunn and My Friend should 11 simply ask the question. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MR. JULIAN ROY: Can I address what Mr. 14 Millar just said? 15 COMMISSIONER SIDNEY LINDEN: Well I 16 prefer we move on, I want to -- 17 MR. JULIAN ROY: Can I please address 18 what Mr. Millar just said. 19 COMMISSIONER SIDNEY LINDEN: Yes, go 20 ahead, Mr. Roy. 21 MR. JULIAN ROY: Mr. Millar just said 22 that -- that this evidence does not implicate this 23 Witness's credibility. In my respectful submission Mr. 24 Harnick -- what I anticipate Mr. Harnick to say is polar 25 opposite to the evidence that we've heard from this
2321 Witness. 2 So, it's -- it's impossible that both of 3 them are accurate, in my respectful submission. 4 And in those circumstances, only one (1) 5 of them can be accurate. 6 COMMISSIONER SIDNEY LINDEN: Yes. 7 MR. JULIAN ROY: It's -- it's appropriate 8 to put the -- 9 COMMISSIONER SIDNEY LINDEN: You could do 10 it in a general way. 11 MR. JULIAN ROY: I'll try to do that. 12 COMMISSIONER SIDNEY LINDEN: Ms. Horvat, 13 did you have a submission? 14 MR. JACQUELINE HORVAT: No, that's fine. 15 COMMISSIONER SIDNEY LINDEN: No. 16 MR. JULIAN ROY: If I was -- may I 17 proceed, Mr. Commissioner? 18 COMMISSIONER SIDNEY LINDEN: Yes, yes. 19 20 CONTINUED BY MR. JULIAN ROY: 21 Q: If I was to suggest to you -- good 22 afternoon again, Ms. Jai. 23 A: Good afternoon. 24 Q: I'm sorry. If I was to suggest to 25 you again -- if I was to suggest to you that an ex parte
2331 injunction was sought at the recommendation of government 2 lawyers, what would your reaction be to that? 3 A: It certainly would not have been a 4 recommendation of myself, Mr. McCabe, or Ms. Christie. 5 Like none of the Government lawyers involved in the 6 Ipperwash incident or in the seeking of the injunction 7 were recommending an ex parte injunction. 8 Q: Okay. And it goes -- implied in -- 9 in your answer just now is you certainly didn't give that 10 advice, correct? 11 A: I certainly did not give that advice. 12 Q: You never heard any other lawyer give 13 anybody in Cabinet that advice? 14 A: Correct. 15 COMMISSIONER SIDNEY LINDEN: Those are 16 proper questions, I think. So, we're going to move on 17 now. 18 MR. JULIAN ROY: All right. 19 20 CONTINUED BY MR. JULIAN ROY: 21 Q: There's a couple of more statements 22 that I'd -- I'd like to suggest. 23 I'm going to -- if I was to suggest to you 24 the following, that it was left to government lawyers as 25 to how to proceed once the decision was made that a civil
2341 injunction would be obtained, if I was to suggest to that 2 to you what would your response be? 3 A: Well, it was not left to government 4 lawyers, in fact we specifically had sought the briefing 5 with Mr. Harnick to get the instructions with respect to 6 the injunction and also with respect to whether it be an 7 ex parte injunction or an -- or an injunction with 8 notice. 9 So, his initial direction was that it be 10 an -- an injunction with notice because that was our 11 recommendation and it was later in the day that I found 12 out that the direction had changed and that we were being 13 told to seek an ex parte injunction. 14 Q: All right. If I was to suggest to 15 you that it was Mr. Tim McCabe's considered opinion that 16 an ex parte injunction be applied for, what would you 17 response be to that? 18 A: Well, certainly what Tim said to me 19 at the Interministerial Committee Meetings and at our 20 legal subgroup meeting was that we did not have grounds 21 for an ex parte injunction and that we should be giving 22 notice in seeking this injunction. 23 So, everything that he communicated to me 24 and to the Interministerial Committee suggested that he 25 was not recommending an ex parte injunction.
2351 Q: All right. One (1) last thing I 2 want to suggest to you before moving onto another area, 3 is the following. 4 If I was to suggest to you that it was 5 absolutely the Government lawyers that determined how the 6 injunction would be applied for and the kind of 7 proceedings they would take to obtain that injunction, if 8 I was to suggest that to you what would your response be? 9 A: That's incorrect because we received 10 direction from ministers and if it had been left up to us 11 we would have provided notice. 12 13 (BRIEF PAUSE) 14 15 Q: Can I ask you this: Does ONAS have - 16 - anybody within ONAS have a role in terms of giving 17 advice to the responsible minister, in this case the 18 Minister for the Attorney General concerning statements 19 in the House on Aboriginal issues? Is there a point 20 person that's responsible for that? 21 A: There are people -- staff are 22 sometimes asked to prepare briefing notes for anticipated 23 questions in the House, but I don't know that -- and that 24 might be some -- like the Corporate Policy Branch might 25 be the branch that has overall responsibility for that,
2361 but a lot of the information would also be provided 2 simply by minister's staff. 3 So, I wouldn't say that there was one (1) 4 point person who was responsible, but I would say that at 5 times ONAS staff would be asked to provide information 6 that would be used in a House note for a minister to deal 7 with anticipated questions. 8 Q: Would it be your expectation that 9 somebody from ONAS, the legal department in ONAS would be 10 consulted concerning questions in the House about the 11 injunction in the Ipperwash proceeding? 12 A: Well, it would depend how much notice 13 there was. I don't -- I don't know how the -- these 14 questions in the House came up -- 15 Q: Well, we're not -- 16 A: -- whether there was advance notice 17 or... 18 Q: We're not referring to questions in 19 the House -- 20 A: Okay. 21 Q: -- but -- but just in general -- 22 generally speaking. We're not referring to these 23 questions in the House that are before you but -- 24 A: It would depend on how much advance 25 notice because, I mean, obviously, questions can arise in
2371 question period for which there's no notice -- 2 Q: Yes. 3 A: And so there's no anticipated 4 response that's been provided in advance. 5 Q: I understand. And after the answer 6 is delivered in the House, is there some kind of process 7 for -- for vetting them for accuracy and ensuring that 8 correct information is conveyed to the House? 9 A: I expect that there is, but that 10 would not -- that would not have been part of my function 11 in the legal branch. Normally that is a policy branch or 12 a communications branch or Minister's liaison branch type 13 of function. 14 So, normally there is in most government 15 ministries or departments that I have worked in, yes. 16 Q: So, when a Minister gives an answer 17 to the House and there's some question about whether it's 18 accurate, there's some process for verifying its accuracy 19 with the relevant ministry or committee involved, 20 correct? 21 A: Normally, yes. 22 Q: Yes. And in ONAS was one of those 23 normal cases, correct? 24 COMMISSIONER SIDNEY LINDEN: Well, I 25 think she said that -- I'm sorry, do you want to repeat--
2381 THE WITNESS: Well just that within ONAS 2 I was the legal director -- 3 COMMISSIONER SIDNEY LINDEN: But, not 4 your part to do that. 5 THE WITNESS: It wasn't my 6 responsibility, so I don't know. But that is the normal 7 way it works within government. 8 9 CONTINUED BY MR. JULIAN ROY: 10 Q: Okay, but to your knowledge there is 11 a mechanism within ONAS, there would be somebody 12 responsible within ONAS to serve that function? 13 A: I can't recall if there was or not. 14 Q: Right. I'm moving on to another 15 area, Ms. Jai. 16 You've told us at some length about what 17 generally the role of ONAS is within the Ontario 18 Government and I want to ask you for a little bit more 19 detail about that. 20 You've told us that part of the role of 21 ONAS is to ensure consistency across the various 22 ministries that are going to have dealings with First 23 Nations people, correct? 24 A: Yes. 25 Q: And am I right in saying that ONAS,
2391 by virtue of that role, has a significant concentration 2 of expertise on First Nation issues? 3 A: Yes. 4 Q: It would have superior expertise than 5 any other ministry in the Government, correct? 6 A: Well, in -- in a concentrated way, 7 yes. There are certainly many experts in other parts of 8 government; people who have expertise in Aboriginal 9 issues -- 10 Q: Yes. 11 A: -- in other areas, but the most 12 concentrated area of expertise would be at ONAS. 13 Q: And the expertise that ONAS has is -- 14 goes beyond just -- just legal expertise, correct? 15 A: Yes. 16 Q: It goes into policy areas, correct? 17 A: Yes. 18 Q: Health issues? 19 A: To some extent. I mean there -- that 20 would also be within the Ministry of Health. 21 Q: All right, but there would be broader 22 social policy expertise that would be concentrated in 23 ONAS, correct? 24 A: Yes. 25 Q: And ONAS would tend to attract people
2401 with educational backgrounds that gave them the necessary 2 expertise to deal with First Nations issues? 3 A: Yes. 4 Q: And by virtue of working with ONAS, 5 they would develop hands on expertise in that area also, 6 correct? 7 A: Yes. There was also -- would also be 8 training opportunities provided for staff within ONAS, 9 specially on First Nation issues. 10 Q: And one of the First Nations issues 11 that considerable expertise would have been developed 12 would have been on the issue of protests and blockades, 13 correct? 14 A: Some expertise. 15 Q: A number of protests and occupations 16 had been resolved peacefully -- 17 A: Yes. 18 Q: -- with ONAS intervention, correct? 19 A: Yes. 20 Q: And when I say "resolved 21 successfully", I mean resolved without loss of life and 22 that is the measure of success for one of these 23 situations, correct? 24 A: That's certainly -- that's certainly 25 one of the measures of success, yes.
2411 Q: And it's the most important measure 2 of success, is it not? 3 A: Yes. 4 Q: And you as -- as the acting director 5 of ONAS, you had a lot of confidence in the people that 6 were working below you, correct? 7 A: You mean in my lawyers in the legal 8 services branch? 9 Q: Yes. 10 A: Yes. 11 Q: And you -- were you -- you were 12 acting director at some point, also, correct? 13 A: The entire time I was at ONAS, I was 14 the acting legal director. 15 Q: Okay. And you had confidence in the 16 people with -- that were working under you, correct? 17 A: Yes. 18 Q: Okay. And you had confidence in -- 19 in the other people within ONAS? 20 A: Well, that's hard to generalize as a 21 collective whole. It was only the legal branch that I 22 knew well and who I directly supervised, but there were 23 certainly very competent people at ONAS generally. 24 Q: And you had the impression from the 25 time that you joined ONAS, working under the previous
2421 Government, the NDP Government, you had the impression 2 that ONAS was working well in terms of developing 3 relationships with First Nations? 4 A: Yes. 5 Q: And obviously there's going to be 6 bumps in the road, but -- but generally speaking, what 7 you've described as a conciliatory approach was working 8 well, in your perspective? 9 A: Yes. 10 Q: Now, you've told us that ONAS has an 11 advisory role within the Government, correct? 12 A: Yes. 13 Q: And what that means is that ONAS does 14 not have the power to make decisions concerning 15 allocation of program funding and -- and matters such as 16 that, correct? 17 A: That's -- yes, that's true. That's 18 true of all Government departments, funding allocations 19 are made by the Legislature. 20 Q: Right. But ONAS, before the matter 21 gets put before the Legislature, ONAS is a couple of 22 steps removed from that process, correct? 23 A: That probably changed with the change 24 of Government, when ONAS became part of the Ministry of 25 the Attorney General, then its budget would have become
2431 part of the Ministry of the Attorney General's budget. 2 Q: Yes. 3 A: Whereas I believe that separately, 4 when it had its own Deputy Minister, it had its own 5 separate budget allocation, so it would have had, in 6 terms of the steps removed that you mentioned, it 7 wouldn't have been quite as far removed. 8 Q: Okay. So, when the new Government, 9 the Conservative Government came in, ONAS was distanced 10 another step away from decision making authority, 11 correct? 12 A: Yes. 13 Q: And what that means is that ONAS, 14 rather than making decisions itself, it has to convince 15 other people to follow its advice on policy concerning 16 First Nations people, correct? 17 A: Well, any major policy decision would 18 have to go to Cabinet, no matter what the internal 19 organization of Government was. 20 Q: But, if ONAS had, for example, a 21 health initiative in mind concerning First Nations 22 people, it would first have to go to the Ministry of 23 Health and convince people there -- there, that it's a 24 worthwhile program; is that correct? 25 A: That would be true under any
2441 organizational structure. 2 Q: But it wouldn't -- it wouldn't be 3 true if -- if there was a separate Ministry, that had its 4 own funding and could initiate its own programs, correct? 5 A: It would be -- I guess this speaks to 6 a very real example that I was involved in under the 7 previous Government, involving the Ministry of Health, 8 and I guess I would just say that the Government 9 Departments, or Ministries, make an effort to work in a 10 collegial, collaborative way together, so that ONAS would 11 not set up a program in another Ministry's area of 12 jurisdiction, without working closely with them in making 13 sure they were on side. 14 Q: Sure. But in any event, for ONAS to 15 do the work that it does, in developing programs for 16 First Nations people, it has to convince people outside 17 of ONAS to agree that its policy recommendations are 18 appropriate, correct? 19 A: Yes. 20 Q: Now, in terms of how the Ministries 21 of the Ontario Government are organized, from time to 22 time various responsibilities within Government are 23 shuffled to -- to different Ministries from time to time, 24 correct? 25 A: Yes.
2451 Q: And that can happen when there's a 2 change in Government, correct? 3 A: Yes, or within a Government as well. 4 Q: Yes. Sometimes the priorities of a 5 Government may change, and there'll be a shift of 6 responsibility among various Ministries, correct? 7 A: Yes. 8 Q: And that can affect the prestige and 9 power of -- of the particular Ministry or committee 10 within a Ministry? 11 A: Yes. I mean, probably the most 12 significant change was that ONAS no longer had its own 13 Deputy Minister -- 14 Q: Yes. 15 A: -- after it became part of the 16 Ministry of the Attorney General. 17 Q: And as a result of that, ONAS would 18 lose a certain amount of prestige and access to decision 19 makers? 20 A: Yes. 21 Q: Instead of having a dedicated Deputy 22 Minister, in order to in effect, get the ear of the 23 Minister, you have to get the ear of -- of a different 24 Deputy Minister that has broader responsibilities? 25 A: Yes.
2461 Q: And that distances ONAS from the 2 levers of power, correct? 3 A: Yes. 4 Q: Now, you told us in -- in your 5 evidence, I believe it was in Ms. Perschy's questioning 6 you told us that in general you were following the 7 positions of the various parties vying for power in the 8 1995 election? 9 A: Sorry, I didn't hear that last part. 10 Q: The 1995 election campaign, you were 11 following it in general as it pertained to First Nations 12 issues? 13 A: Yes. 14 Q: Yeah. And during the campaign you 15 had made observations about some of the -- the statements 16 made by Conservatives on the election campaign, correct? 17 A: Yes. 18 Q: And in your mind some of those 19 statements suggested a lack of knowledge or appreciation 20 for the special rights of First Nations people? 21 A: Yes. 22 Q: And after the election of the 23 Conservative Government the removal of -- of your deputy 24 minister was significant to you, correct? 25 A: Yes.
2471 Q: Yeah. And you had occasion -- you've 2 told us at some length, I'm just going to allude to it in 3 your briefings of the various ministry staff, the 4 Premier's office, MNR, and the AG's office. 5 You were involved in briefings there? 6 A: With the new government, yes. 7 Q: Yes. And your impressions about the 8 lack of awareness or appreciation of First Nations, the 9 special rights of the First Nations people, your concerns 10 about that were only augmented, correct? 11 A: Yes. 12 Q: Now, as you were following these 13 developments as the Acting Director of the Legal 14 Department in ONAS, am I right in saying that you felt 15 some anxiety in terms of the direction that the new 16 government was going to be taking? 17 A: With respect to Aboriginal issues, 18 yes. 19 Q: Yes. And you made observations of 20 the general environment and mood within in ONAS in terms 21 of how other people were reacting also, correct? 22 A: You're asking what my impressions 23 were -- 24 Q: Yes. 25 A: -- of the mood generally at ONAS?
2481 Q: The morale at ONAS during this period 2 when the Conservatives obtained the Government in 1995? 3 A: I would say there was some concern 4 because of the policy positions of the Government that 5 this was going to create difficulty for us in our work 6 with First Nations. 7 Q: And for an advisory body to be 8 working, the people -- people at the levers of power have 9 to be listening to the advice, correct, for you to have 10 any impact? 11 A: Yes. 12 Q: And there was concern that this new 13 government may not be listening to the advice that ONAS 14 would be providing on First Nations issues; that was your 15 concern, correct? 16 A: Well, I mean governments can disagree 17 with advice that they get from staff -- 18 Q: Sure. 19 A: -- that's their prerogative. 20 Q: It is. 21 A: So, I guess the concern was that -- 22 that -- that there would be many situations it appeared 23 in which the advice of the staff would not -- or the 24 recommendations of staff would not be followed and that 25 that would create difficulties in our relationships with
2491 First Nations and in fulfilling the constitutional and 2 legal obligations. 3 Q: And that -- and you felt that was a 4 contrast with the approach of the previous government, 5 correct? 6 A: Yes. 7 Q: Now, you identified a number of -- of 8 issues in your evidence and there -- there's also 9 reference in the documents to some pretty contentious 10 First Nations issues that are on the horizon as the new 11 government takes over in 1995 -- 12 A: Yes. 13 Q: -- correct? 14 A: Yes. 15 Q: And you had some -- for example there 16 were some resource sharing agreements that were up for 17 renewal, correct? 18 A: Yes. 19 Q: And there was also some delicate land 20 claims negotiations that were in play, correct? 21 A: Yes. 22 Q: And you were concerned that -- that 23 the approach of the new government could lead to a 24 setback in terms of the Ontario Government's relationship 25 with First Nations?
2501 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 2 Twohig? 3 MS. KIM TWOHIG: Yes, Mr. Commissioner, 4 I'm -- I'm a little concerned that this evidence is going 5 into areas that are not relevant to the Inquiry and that 6 may raise issues of privilege and confidentiality. 7 COMMISSIONER SIDNEY LINDEN: Well, I'm 8 not sure how much farther you are going, I don't know. 9 We've heard a lot of this evidence 10 already. 11 MR. JULIAN ROY: We have, and I'm going 12 somewhere. I'm going somewhere with it in terms of this 13 Witness' state of mind. 14 COMMISSIONER SIDNEY LINDEN: This 15 witness' state of mind. 16 MR. JULIAN ROY: State of mind when 17 receiving signals from a new government in terms of their 18 new approach. 19 MR. DERRY MILLAR: I don't understand 20 that. 21 COMMISSIONER SIDNEY LINDEN: I'm not sure 22 I do. 23 MR. DERRY MILLAR: The witness gave her 24 evidence as to some of her concerns. All of this stuff 25 she gave already.
2511 COMMISSIONER SIDNEY LINDEN: In-chief. 2 MR. DERRY MILLAR: In-chief. 3 COMMISSIONER SIDNEY LINDEN: Yes, I 4 think -- 5 MR. DERRY MILLAR: I asked her these 6 questions and she gave this evidence, the same evidence, 7 the same answers, and I don't understand the -- the 8 comment "her state of mind" with respect to -- you know, 9 we ask the Witness a question, we get an answer -- 10 COMMISSIONER SIDNEY LINDEN: Yes. 11 MR. DERRY MILLAR: -- what she did, when 12 she did it, what instructions she received, what 13 instructions she gave. I just don't understand this line 14 of questioning. 15 COMMISSIONER SIDNEY LINDEN: It's not 16 helpful, Mr. Roy, or productive to just repeat evidence 17 that we've already heard -- 18 MR. JULIAN ROY: I understand that. 19 COMMISSIONER SIDNEY LINDEN: -- and we 20 have heard this. You know that, I know you do. We've 21 already heard -- 22 MR. JULIAN ROY: I'm doing my best but -- 23 COMMISSIONER SIDNEY LINDEN: Yes. 24 MR. JULIAN ROY: I can't -- I can't ask 25 the last question, the last five (5) questions that are
2521 directly at the core of -- of the point I'm going to be 2 making first. I have to lay some groundwork and I've 3 gone last. It was a week and a half ago -- 4 COMMISSIONER SIDNEY LINDEN: No, but 5 that's -- 6 MR. JULIAN ROY: Yes, it is a -- 7 COMMISSIONER SIDNEY LINDEN: -- that's 8 the way this Inquiry's organized. 9 MR. JULIAN ROY: That's right. 10 COMMISSIONER SIDNEY LINDEN: It doesn't 11 mean you get to do it all over again. 12 MR. JULIAN ROY: I understand that. I'm 13 trying to introduce that area, because it was last -- 14 COMMISSIONER SIDNEY LINDEN: No, but -- 15 MR. JULIAN ROY: The evidence went -- the 16 evidence on this issue went a week and a half ago when 17 Mr. Millar was asking questions. 18 COMMISSIONER SIDNEY LINDEN: That doesn't 19 matter. I mean, I'm going to be writing my report some 20 months from now. 21 MR. JULIAN ROY: Yeah, but I have -- I 22 have to -- I have to put context to the questions that 23 I'm going to ask the -- 24 COMMISSIONER SIDNEY LINDEN: Well, only 25 if the questions are relevant and helpful, and so far I'm
2531 not sure that they're either, because we've already heard 2 them or a lot of them. 3 We've already heard your questions and the 4 answers to a lot of the questions that you -- you've 5 asked. 6 So, I was trying to give you some leeway. 7 MR. JULIAN ROY: Yes. 8 COMMISSIONER SIDNEY LINDEN: I will try 9 to give you some leeway, because I mean, you're here with 10 standing at this Inquiry because of your experience with 11 Aboriginal issues, the ALST. 12 MR. JULIAN ROY: Yes. 13 COMMISSIONER SIDNEY LINDEN: And so I'm 14 looking for your assistance but so far I think you've 15 just gone over a lot of evidence that has already been 16 gone into by others and by Commission Counsel in-chief in 17 particular. 18 MR. JULIAN ROY: Yes. I'm about to get 19 to the core of the particular area, and I'll do my best 20 to -- I am trying to pare down, Mr. Commissioner, and I 21 have pared down. 22 And I'm far under my estimate that I gave, 23 that I did give earlier. 24 COMMISSIONER SIDNEY LINDEN: Well, okay, 25 I mean that's fine. Let's continue.
2541 2 CONTINUED BY MR. JULIAN ROY: 3 Q: Now, I'm going to suggest to you that 4 as a senior member of ONAS, the election of the new 5 government created somewhat of a dilemma for somebody in 6 your position in the sense that you had an understanding 7 that the new government may not be as receptive to the 8 type of advice that you had given in the past, am I right 9 about that? 10 A: It was a challenging environment to 11 work in. 12 COMMISSIONER SIDNEY LINDEN: I mean 13 that's about as high as it could go. It was a 14 challenging environment. The answer's a good one. 15 You put it as a dilemma. I'm not sure 16 that it's a dilemma, it's a challenging environment. 17 MR. JULIAN ROY: I did -- I did put it as 18 a dilemma, and then the Witness is free to -- 19 COMMISSIONER SIDNEY LINDEN: Yes, the 20 Witness has -- 21 MR. JULIAN ROY: -- agree with that or -- 22 COMMISSIONER SIDNEY LINDEN: -- given -- 23 MR. JULIAN ROY: -- disagree. And 24 "challenging environment" I'm perfectly happy with, Mr. 25 Commissioner.
2551 COMMISSIONER SIDNEY LINDEN: Fine. 2 MR. JULIAN ROY: And I'll move from that. 3 4 CONTINUED BY MR. JULIAN ROY: 5 Q: In the challenging environment, what 6 you mean when you say "challenging environment" is 7 there's a concern that the advice that you give may not 8 be listened to, to the same degree as with the previous 9 government, correct? 10 MS. KIM TWOHIG: I'm not sure that this 11 is a proper line of questioning, Mr. Commissioner. 12 COMMISSIONER SIDNEY LINDEN: Well -- 13 MS. KIM TWOHIG: Ms. Jai has testified 14 that civil servants give advice and recommendations to 15 government, and that the Government of the day is free to 16 accept or reject those recommendations. 17 So, whether or not the advice is accepted 18 is -- is irrelevant in terms of the types of questions 19 that My Friend is asking. 20 COMMISSIONER SIDNEY LINDEN: I'm not sure 21 that they are relevant any more. We've heard enough of 22 this, that's what I mean. I don't think we need to hear 23 any more of it, but... 24 MR. JULIAN ROY: Well, I want to explore 25 the challenging environment, because let me -- let me
2561 tell -- I'll just tell you where I intend to go with this 2 Witness. 3 One of the central issues in this Inquiry 4 is the impact that political pressure had on, not only 5 the Police, but also members of the civil service. It 6 could be inferred that where civil servants feel 7 vulnerable to not being listened to, that they may tailor 8 their advice to their audience to some extent. 9 In other words that they may give advice - 10 - they may be -- feel constrained to give advice that 11 they think is going to like -- is going to be well 12 received by the Government of the day. 13 COMMISSIONER SIDNEY LINDEN: I'm not sure 14 that that's a legitimate inquiry for this Inquiry. 15 MR. JULIAN ROY: Well -- 16 MR. DERRY MILLAR: But if -- if the 17 question -- the question can be asked, because of the new 18 Government, were you constrained in giving your advice, 19 and if so, how? 20 If you want to ask that question, 21 assuming it's relevant for the moment, but you can ask 22 the question directly. 23 MR. JULIAN ROY: Well, that's -- that's 24 the point of cross-examination is that -- that from time 25 to time, counsel go about it indirectly. I mean, that's
2571 -- that's what cross-examination is. 2 COMMISSIONER SIDNEY LINDEN: It depends-- 3 MR. JULIAN ROY: Examination-in-chief is 4 an entirely different exercise. 5 COMMISSIONER SIDNEY LINDEN: No, but it 6 depends on the point of cross-examination, you're not 7 challenging the credibility of this Witness. I don't 8 believe that's what you're doing? 9 MR. JULIAN ROY: I'm exploring the 10 conditions under which civil servants can become 11 vulnerable to political pressure, that may lead to 12 recommendations at the end of the day on how to structure 13 Government in a way that immunizes civil servants from 14 that type of pressure. That's all I'm trying to do. I 15 mean, maybe there's a better way to do it than the way -- 16 COMMISSIONER SIDNEY LINDEN: I'm not 17 sure. 18 MR. JULIAN ROY: -- I'm doing it. 19 COMMISSIONER SIDNEY LINDEN: I'm not 20 sure, so -- 21 MR. JULIAN ROY: But that -- that is the 22 point of -- 23 COMMISSIONER SIDNEY LINDEN: Mr. -- 24 MR. JULIAN ROY: -- inquiry I'm pursuing. 25 COMMISSIONER SIDNEY LINDEN: I
2581 understand. Mr. Millar gave you a suggestion as to how 2 you might ask the question and get to the answer. I 3 mean, it may not be the way you would like to do it, but 4 perhaps if you asked that question -- 5 MR. JULIAN ROY: It isn't, but I'll -- 6 COMMISSIONER SIDNEY LINDEN: -- you'd get 7 an answer perhaps. 8 MR. JULIAN ROY: It isn't the way I want 9 to ask the question, but I -- I'll just ask it that way 10 anyway and see where we go. 11 COMMISSIONER SIDNEY LINDEN: All right. 12 MR. JULIAN ROY: See if it helps us. 13 COMMISSIONER SIDNEY LINDEN: Yes, go 14 ahead. 15 16 CONTINUED BY MR. JULIAN ROY: 17 Q: Is there any -- I want to ask you 18 this, Ms. Jai. Actually I don't want to ask you this, 19 but I'm going to ask you this anyway. 20 Is there a tendency on the part of civil 21 servants who act in an advisory capacity, to feel 22 constrained in the advice they give, out of a concern 23 that if they don't give advice that they believe the 24 Government politicians of the day are receptive to, that 25 that advice will simply be ignored, and they will have no
2591 input into -- into Government policy? 2 MR. DERRY MILLAR: Ms. Jai cannot answer 3 a question as broad as that. 4 COMMISSIONER SIDNEY LINDEN: And we're 5 going to go into that -- 6 MR. DERRY MILLAR: Ms. Jai can answer a 7 question, did Ms. Jai feel constrained. 8 COMMISSIONER SIDNEY LINDEN: Yes. 9 MR. DERRY MILLAR: How -- she cannot 10 speak for the public service of Ontario. 11 COMMISSIONER SIDNEY LINDEN: We're going 12 to go into areas that will never be seen or heard from 13 again. I mean, I think we have to stay relevant and 14 focussed on issues that are part of our mandate, so I 15 think that's way beyond. 16 It may be relevant in Part II of my 17 Inquiry, I don't know that, possibly it is. But it's 18 certainly not relevant here, with this Witness on the 19 stand. You've got a fact witness here, fact witness, and 20 I think you should confine yourself to questions that are 21 relevant and helpful. 22 MR. JULIAN ROY: Well, I -- I'm going to 23 move on to another area and -- 24 COMMISSIONER SIDNEY LINDEN: Thank you. 25 MR. JULIAN ROY: -- and think some more
2601 about how I might approach this in a way that -- that 2 might get a better reception from the Commission, but... 3 4 CONTINUED BY MR. JULIAN ROY: 5 Q: I want to take you to the -- to a 6 period of time after the shooting. 7 A: Yes. 8 Q: On September 7th, and I want to ask 9 you some questions about that. 10 And I want to start with Tab 2 of the 11 Commission's documents. 12 13 (BRIEF PAUSE) 14 15 A: Yes, that's Exhibit P-658. 16 COMMISSIONER SIDNEY LINDEN: Sorry, which 17 tab is it? 18 THE WITNESS: Tab 2. 19 COMMISSIONER SIDNEY LINDEN: Of...? 20 THE WITNESS: Of the Commission's -- 21 COMMISSIONER SIDNEY LINDEN: Commission's 22 Binder? 23 THE WITNESS: -- binder, and that's 24 Document 1003525. 25
2611 (BRIEF PAUSE) 2 3 CONTINUED BY MR. JULIAN ROY: 4 Q: Now, as I understand it, this is a -- 5 this is your note of a meeting with Yan Lazor on 6 September 7th? 7 A: Yes. 8 Q: And this is -- happens at 8:00 a.m., 9 almost -- it's one (1) of your first involvement after 10 the shooting; is that correct? 11 A: I can't recall the exact time of the 12 meeting, it's possible that we could reconstruct it by 13 looking at other documents. I agree it was early on -- 14 on September 7th. 15 Q: And... 16 17 (BRIEF PAUSE) 18 19 COMMISSIONER SIDNEY LINDEN: Are you 20 looking for something? I'm sorry -- 21 MR. JULIAN ROY: Yeah. 22 COMMISSIONER SIDNEY LINDEN: -- are we 23 waiting for you? 24 MR. JULIAN ROY: I beg your pardon? 25 COMMISSIONER SIDNEY LINDEN: Are we
2621 waiting for you? 2 MR. JULIAN ROY: Yes. 3 COMMISSIONER SIDNEY LINDEN: Okay. I 4 wasn't sure what was happening; that's fine. 5 MR. JULIAN ROY: I -- I... 6 COMMISSIONER SIDNEY LINDEN: Okay, carry 7 on. 8 9 (BRIEF PAUSE) 10 11 MR. DERRY MILLAR: I think we should take 12 a five (5) minute break, sir, a short break? 13 COMMISSIONER SIDNEY LINDEN: Are you all 14 right, Ms. Jai? 15 THE WITNESS: Yes. 16 COMMISSIONER SIDNEY LINDEN: We'll take a 17 short break now. 18 THE REGISTRAR: This Inquiry will recess 19 for five (5) minutes. 20 21 --- Upon recessing at 3:19 p.m. 22 --- Upon resuming at 3:32 p.m. 23 24 THE REGISTRAR: This Inquiry is now 25 resumed. Please be seated.
2631 COMMISSIONER SIDNEY LINDEN: Thank you. 2 MR. JULIAN ROY: I apologize, Mr. -- all 3 I -- 4 COMMISSIONER SIDNEY LINDEN: You don't 5 have to. 6 MR. JULIAN ROY: I was just re-looking at 7 my notes and -- and -- 8 COMMISSIONER SIDNEY LINDEN: That's fine. 9 Sure, let's carry on. 10 MR. JULIAN ROY: -- on -- on the fly 11 going to go somewhere else so -- 12 COMMISSIONER SIDNEY LINDEN: Okay, you 13 were on Exhibit 658, have you moved to something else, or 14 are you on -- 15 MR. JULIAN ROY: No, I'm still there, I'm 16 still there. 17 COMMISSIONER SIDNEY LINDEN: Okay, that's 18 fine. 19 MR. JULIAN ROY: But I'm told that I 20 didn't look well there for a second. 21 COMMISSIONER SIDNEY LINDEN: No, I just-- 22 MR. JULIAN ROY: I hadn't noticed, and -- 23 and I thank My Friends for their concern, but I -- I'm 24 ready to go and we'll just keep going. 25 COMMISSIONER SIDNEY LINDEN: Just take
2641 your time, we'll carry on. 2 MR. JULIAN ROY: All right. 3 COMMISSIONER SIDNEY LINDEN: Thank you. 4 5 CONTINUED BY MR. JULIAN ROY: 6 Q: We're at Tab 2 -- 7 A: Yes, this is -- 8 Q: -- of the Commission Documents -- 9 A: -- Exhibit P-658 -- 10 Q: In your -- 11 A: -- Document 1003525, my notes of my 12 meeting with Yan Lazor on September the 7th. 13 Q: Yes, in that meeting that's very soon 14 after you arrive at the office, correct? 15 A: As I said, it's sometime in the 16 morning of September 7th, yes. 17 Q: Okay. And you told the Commission 18 earlier that you were shocked to hear that there'd been a 19 shooting and a death at the Ipperwash Park; is that 20 correct? 21 A: Yes. 22 Q: And things were happening very fast, 23 correct? 24 A: Yes. 25 Q: And you had a lot of responsibility
2651 on your plate at that point, correct? 2 A: Yes. 3 Q: And the other people within ONAS did 4 also, correct? 5 A: Many of the others did. 6 Q: Yeah. Mr. Lazor would have been one 7 (1) of the many, correct? 8 A: Yes, very much so. 9 Q: And am I right in saying that one (1) 10 of the first things that you and Mr. Lazor discussed on 11 September 7th after the shooting, is this issue about 12 reporting relationships with Deputy Ministers? 13 A: Yes. 14 Q: And when I -- the fact that you -- 15 it's one (1) of the earliest things the two (2) of you 16 discussed, am I right in saying that that was a very 17 important matter at that point? 18 A: Yes. 19 Q: Even in light of all the other very 20 significant things that were happening, correct? 21 A: Yes. 22 Q: And the note reflects the fact that - 23 - I'm sorry -- the -- the note reflects the suggestion 24 that the Deputy Minister be responsible for the linkage 25 with political staff; is that correct?
2661 A: Yes. 2 Q: And am I right in saying that 3 ordinarily, in the ordinary course, it is the Deputy 4 Minister's responsibility to have interaction with 5 political staff? 6 A: Yes. 7 Q: The ordinary rule is that people at 8 your level, the Director level, not have direct 9 interaction with political staff? 10 A: Only on -- on -- in unusual 11 circumstances, but the normal rule would be that you 12 would go through the Deputy Minister. 13 Q: Yes. In the unusual circumstances 14 where the Deputy Minister authorizes that type of direct 15 contact it's appropriate, correct? 16 A: Well, there would be -- I mean, there 17 are many times, and I'm sure other witnesses have 18 testified to this as well. If you get a call from the 19 Minister -- someone in the Minister's office seeking 20 information, that you can just easily give them more. 21 You know, that there would be some 22 circumstances, and obviously the whole Interministerial 23 Committee setup was a specific circumstance as well, in 24 which direct contact was authorized. 25 Q: All right. So, for innocuous
2671 housekeeping type requests for information, there's no 2 problem with that type of contact, correct? 3 A: Correct, although somebody who was a 4 stickler for rules might say, you should really be, you 5 know, going through the Deputy Minister's office. 6 Q: Now, just backing up generally from 7 this note, this structure of -- of reporting within the 8 civil service, puts a great emphasis on the Deputy 9 Minister, does it not? 10 A: Yes, it does. The Deputy is the one 11 (1) who has that role of mediating between the civil 12 service and the political level. 13 Q: He's the link, correct? 14 A: He is the link. 15 Q: And he has to be the filter to ensure 16 that -- that information that's coming from below is 17 appropriately passed on to the political staff, correct? 18 A: And vice versa. 19 Q: And ensuring that the information 20 from the political staff, as it goes back down the chain, 21 is properly filtered, correct? 22 A: Yes. 23 Q: Then the whole point of this exercise 24 is to ensure some sort of independence on the part of the 25 civil service; is that correct?
2681 A: I'm sure that that's one (1) of -- 2 one (1) of the main purposes, yes. 3 Q: Now, was it you or Mr. Lazor, on that 4 early morning meeting of September 7th, that raised the 5 issue of the reporting relationship? 6 A: I believe it was Mr. Lazor and I 7 believe he had already had a discussion with the Deputy - 8 - with Larry Taman. 9 Q: All right. And did he tell you 10 anything about that discussion? 11 A: I can't recall, but I know that -- I 12 mean there had been -- but Larry had been brought into 13 this issue and I assume that Yan, who reported directly 14 to Larry, had had a discussion with him. This is 15 probably based on Larry's instructions that we had this 16 discussion. 17 Q: Okay. Your understanding was that -- 18 when you say, "Larry Taman was brought into this issue" 19 do you mean this issue about the reporting situation or 20 with the Ipperwash shooting -- 21 A: Responding to the Ipperwash shooting. 22 Q: Okay. And your understanding was one 23 (1) of the first things that Mr. Taman does is have a 24 discussion with Mr. Lazor about changing the way that the 25 reporting relationships are occurring as pertains to this
2691 incident, correct? 2 A: Yes, that's my general recollection. 3 4 (BRIEF PAUSE) 5 6 Q: Now, Mr. Lazor was not sitting -- was 7 not present at the Interministerial Committee Meetings of 8 September 5th or 6th? 9 A: No, he was not there. I debriefed 10 him on -- on the meetings after the meetings and as you - 11 - you saw, some of the e-mails. 12 Q: Yes. All right. And is it your 13 understanding that the information that you briefed Mr. 14 Lazor on was passed to Mr. Taman? 15 A: No, not -- not necessarily. I don't 16 know how much would have been passed on to Mr. Taman. 17 Q: Okay. 18 A: As the Deputy Attorney General he 19 would have had many responsibilities, this would have 20 only have been one (1). So, it would have been Yan's 21 decision as to how much detail to pass on. I think I had 22 also copied Larry's executive assistant on some of the e- 23 mail debriefs from the meeting. 24 So, again, she might have made the 25 determination as to how much to pass on to Mr. Taman.
2701 So, I did not directly communicate to Mr. Taman and 2 therefore I don't know how much was passed on to him. 3 Q: All right. Do you have any knowledge 4 as to whether or not it was anything that you said to Mr. 5 Lazor that resulted in this direction from Mr. Taman? 6 A: I -- I have no idea. I can't -- I 7 can't recall. 8 Q: Do you have any knowledge about 9 whether or not anybody else raised a concern with Mr. 10 Taman or Mr. Lazor about the interface between civil 11 service and political staff that would have given rise to 12 this direction? 13 A: I don't know. 14 Q: Now, in terms of -- you've been 15 examined at some length about the reasons -- the presence 16 of political staff on the Interministerial Committee and 17 the reasons for it and I want to ask you just a couple of 18 questions about that. 19 Am I right in saying that the purpose of - 20 - of political staff on that committee, as you understood 21 it as Chair of the Committee, was to facilitate a faster 22 flow of information from the discussions by civil service 23 at that committee meeting up to the applicable minister? 24 A: That was one (1) of the main reasons, 25 yes.
2711 Q: Okay. So, the point of it was to 2 sort of short circuit the ordinary director to assistant 3 deputy minister to deputy minister and then to the 4 minister's staff, correct? 5 A: Yes. 6 Q: Because you're dealing with an event 7 that's moving fairly quickly, correct? 8 A: Yes. 9 Q: And this ordinary chain of command 10 can be -- can take a little bit more time, correct? 11 A: Yes. 12 Q: And the point of it was, was to allow 13 the Minister and his political staff to have an 14 understanding about what was being discussed by way of 15 options at that meeting on a quicker basis; is that 16 correct? 17 A: Well, information as well as options, 18 just to be informed of what was happening. 19 Q: Okay. Because there's -- there's a 20 briefing on -- on the facts on the ground. 21 A: Yes. 22 Q: And that's information that -- that 23 should go up to the applicable minister, correct? 24 A: It -- depending -- that again would 25 be up to the Minister's staff person who was there as to
2721 whether to pass it on. Ministers are very busy people -- 2 Q: Yes. 3 A: -- so there are all kinds of people 4 around them who selectively choose which information is 5 important for them to receive at a given point in time. 6 Q: Okay. So, there's the facts but 7 there's also the options that are being developed by the 8 civil -- 9 A: Yes. 10 Q: -- service staff, correct? 11 A: Yes. 12 Q: And that's really what you're doing, 13 you're developing options that -- that are presented up 14 the chain to be considered. 15 A: Well, the formal presentation would 16 be in the form of a recommendation from the Committee. 17 So, that's different from the options that might be 18 bandied about at the meeting. 19 Q: Okay. Well, we'll get to -- we'll 20 get to some of the documentation that may speak to this 21 and I'll have some questions for you about it. If you 22 could turn to Tab 38 please? 23 24 (BRIEF PAUSE) 25
2731 A: Okay. These are the notes of -- my 2 handwritten notes from September 7th of the Inter- 3 ministerial Committee meeting. 4 Q: Yes. And -- 5 A: That's Exhibit P-657, I believe. 6 Q: Yes. It's at Tab 38 of Commission 7 Documents Exhibit P-657. And I can see, Ms. Jai, you're 8 starting to get the hang of it in terms of, you're faster 9 on the exhibits than the rest of us? 10 A: I'm trying to -- I'm -- I'm kind of 11 an efficiency nut, I have to say. So, anything I can do 12 to speed it along I'm happy to do. 13 Q: Yes. And it's reflected in your 14 copious notes of all these meetings also. I want to ask 15 you about this -- this expression, "nerve centre to be 16 established?" 17 A: Yes. 18 Q: Now, am I right in saying that the -- 19 the idea of the nerve centre is to have a committee of 20 deputy ministers who are most involved in the incident? 21 A: Yes. 22 Q: And do you know whose idea it was to 23 develop a nerve centre in relation to this incident? 24 A: I don't know whose idea it was. But 25 it did -- by the time we had this meeting in the morning
2741 of September 7th the deputies had already had discussions 2 among themselves. 3 So, it was presented by the deputies. So, 4 it seemed to emanate from the deputy ministers. 5 Q: Okay. And that would include Mr. 6 Taman? 7 A: Yes. 8 Q: And there's a reference halfway down 9 the page to "LT"; that's Larry Taman? 10 A: Yes. 11 Q: "Has positioned blockades committee 12 as advisory." 13 Do you see that? 14 A: Yes. 15 Q: So, in other words, the blockades 16 committee is going to be a body that gives advice to the 17 nerve centre; is that correct? 18 A: Yes. 19 Q: And if you look at the bottom of the 20 page: 21 "Blockade committee will remain an 22 official centre, political staff input 23 will be through the command centre." 24 Do you see that? 25 A: Yes.
2751 Q: Can you -- can you -- this is your 2 note? 3 A: Yes. 4 Q: And can you tell me what the 5 significance of this is please? 6 A: Well, this is just what we discussed 7 earlier, that political staff would be -- that any 8 communication to political staff would be through the 9 deputies; that's why it says: 10 "Political staff input will be through 11 the command centre." 12 Which is another term for the nerve 13 centre. If you'll -- if you see earlier in the page 14 where Ron Vrancourt first talks about the nerve centre 15 being established and underneath it says in quotes: 16 "Command centre." 17 So, there were various terms used for this 18 group of the three deputies. 19 But 'nerve centre' and 'command centre' 20 and other words. 21 Q: All right. But, the point -- the 22 point of your notation here is the direction you were 23 getting was the political staff were going to be removed 24 from blockade committee -- 25 A: Yes.
2761 Q: -- is that correct? And were you 2 ever told the reason for that? 3 A: I might have been told at the time. 4 I can't recall the details now. I'm -- I think at the 5 time I just felt, kind of, relieved. 6 Q: And why did you feel relieved? 7 A: Because it was very difficult for me 8 to manage the competing view, and sometimes conflicting 9 views of the people on the Committee. 10 Q: And that was going to be easier once 11 the political staff were removed, correct? 12 A: Yes. 13 14 (BRIEF PAUSE) 15 16 Q: If you could turn to page 3 of that 17 note please? 18 A: Yes. 19 Q: You see towards the top of that page 20 is a reference again to: 21 "Blockades group to be public servants 22 only." 23 A: Yes. 24 Q: And: 25 "DMs to manage the political
2771 interface." 2 Do you see that? 3 A: Yes. 4 Q: And is that Larry Taman that's 5 speaking there? 6 A: I -- I can't tell from this note. 7 It's possible. 8 Q: All right. There's another set of 9 notes that's in the same tab, with a page 1 on it, if you 10 go two (2) pages further, also dated September 7th? 11 A: Yes. 12 Q: It's P-656? 13 A: Yes. 14 MR. JULIAN ROY: I thank Mr. Millar for 15 that. 16 17 CONTINUED BY MR. JULIAN ROY: 18 Q: And there's a reference towards the 19 bottom of the page, it says, "Larry." 20 This is your note by the way? 21 A: Yes, it is. 22 Q: "Larry, what should role of -- 23 A: "Interministerial Committee be?" 24 Q: "I-M Committee be." 25 And that's Interministerial Committee?
2781 A: Yes. 2 Q: And then if you go towards the bottom 3 of the page it says: 4 "Feels Police and Blockade Committee 5 should provide advice. Contact DM for 6 link to political staff. Feels 7 political staff should eventually be 8 removed from Committee. LT will work 9 on that." 10 Do you see that? 11 A: Yes, Larry Taman. So, this -- this 12 note was obviously written prior to the notes that we 13 were just looking at from the blockade, or the 14 Interministerial Committee meeting. So, this was earlier 15 on the morning of September the 7th. 16 Q: Okay. 17 A: Prior to 10:30 a.m., because 10:30 18 a.m. was when the Blockades Committee meeting -- 19 Q: All right. 20 A: -- took place. 21 Q: And -- and it reflects a discussion 22 that you had with Mr. Taman about how the Ministerial 23 Committee was going to be restructured, correct? 24 A: Yes. 25 Q: And then you delivered that message
2791 at the meeting that's reflected in the notes earlier at 2 the tab, correct? 3 A: Well, I didn't deliver it, the 4 Deputy's delivered that message. 5 Q: Okay. 6 A: They were at the meeting. 7 Q: I see. I see. 8 A: The -- which was unusual, but they 9 were there specifically to deliver this message about the 10 new structure and the Deputy's being in charge at the 11 nerve centre. 12 Q: And that was one (1) of the primary 13 issues that was discussed at that Committee; is that not 14 correct? 15 A: Yes. 16 Q: And that signifies the importance of 17 that issue to the people who were putting that forward? 18 A: Yes, it -- it would seem to have been 19 gone over many times, in -- in terms of just my notes 20 reflect the same statements being made again and again. 21 Q: Yes. 22 A: That -- that the political staff are 23 to report to the Deputies, and not beyond the 24 Interministerial Committee. 25 Q: If you could go to Tab 117, which is
2801 the Commission's second volume. By the way, does that -- 2 that note that I've just -- that we've just gone through, 3 does that jog your memory as to being advised as to the 4 reasons for the -- the change in the reporting structure? 5 A: Well, I can -- I could only 6 speculate, I'd rather not. There are many reasons why 7 there -- many good reasons why there might have been a 8 change in the reporting structure. 9 But, I -- I mean, I could give three (3) 10 or four (4) possible reasons, but they're not based on my 11 recollection at the time. So, I -- I don't think it's 12 appropriate to give those reasons. 13 Q: All right. Well there's a couple 14 more documents that we can look at that might shed light 15 on it, and -- and -- 16 A: Okay. 17 Q: -- if -- if you can narrow it down 18 for us, that would be helpful. And -- and the first one 19 I want you to look at is Tab 117, which is Exhibit P-702. 20 A: This is the ONAS briefing note for 21 Larry Taman, dated October 24th, 1995? 22 Q: That's correct. And it's prepared by 23 you; is that not correct? If you look at the front page? 24 A: Yes, it is. 25 Q: And in the comment box it says:
2811 "This material was not sent over, 2 slides used instead." 3 Do you see that? 4 A: Yes. 5 Q: So, this was a note that you 6 prepared, but then there was some slides that were 7 prepared from this; is that correct? 8 A: Yes. 9 Q: Now, if you look on the -- on the 10 first page of the actual memo, which is the second page 11 of the tab? 12 A: Yes. 13 Q: Then you go under the bullet points? 14 A: Hmm hmm. 15 Q: There's a line that says: 16 "Based on these criteria as well as the 17 SG's Ipperwash Crisis Management 18 Interim Evaluation Report, it is clear 19 that it is -- that there's room for 20 improvement." 21 Do you see that? 22 A: Yes. 23 Q: And that's you that's authoring this, 24 correct? 25 A: Well, I wrote this.
2821 Q: Yeah. And it's -- 2 A: But it's really the pooling together 3 of information from a variety of sources. 4 Q: Yes, but you're ultimately 5 responsible for drafting this? 6 A: Yes. 7 Q: And the room for improvement pertains 8 to how the Ipperwash incident was handled at your level, 9 is that correct? 10 A: At what? 11 Q: At your level, as opposed to the -- 12 the policing level? 13 A: Right. 14 Q: Yes. 15 A: Within government, yes. 16 Q: And one of the areas that's 17 identified as an area that is clear that there is room 18 for improvement, is if you look on the second page. 19 A: Yes. 20 Q: Membership and role of 21 Interministerial officials Committee for Aboriginal 22 Emergencies, do you see that? 23 A: Yes. 24 Q: And that's an area that you've 25 identified as -- as an area that's clear -- where there's
2831 clear need for improvement, correct? 2 A: Yes. 3 Q: And on the suggestion side, it's 4 reflected the same direction that you and I have been 5 discussing through these other notes, the notion that the 6 political staff to be removed from the blockades 7 committee, is that correct? 8 A: Yes. 9 Q: Now, given the fact that you authored 10 this document, identified this need and came up with this 11 suggestion, does that -- the basis for this suggested 12 improvement, does that refresh your memory as to why this 13 was done? 14 A: Well, I guess more helpful to me is 15 the briefing note that follows which is the October 11th 16 note, evaluation of government -- 17 Q: Sure. 18 A: -- response to Ipperwash situation. 19 And on page 2 of that note, and I think this is still 20 part of the same exhibit -- 21 Q: It is. 22 A: It says "possible improvements to 23 process", and then there were some suggestions such as 24 separating political staff from public service -- 25 servants at the meeting, having a smaller group of key
2841 public servants to manage the Government's response. 2 And then it's noted, it -- just in terms 3 of commenting on what happened, it was not always clear 4 which decisions could be made at what level or which 5 ministry had the lead and could make a final decision. 6 So, I mean that paragraph in particular, I 7 do recall that being something, you know, that I 8 identified as being a problem with the process, that 9 trying to work on a consensus -- consensus-based way with 10 a very large group of people from many different 11 ministries made it difficult and also because ONAS was 12 the chair, it was difficult for ONAS to put forward its 13 point of view. 14 For example, when we went through the 15 meeting notes, I believe one of the Counsel took me 16 through and he said very clearly, you know, well the 17 position of MNR was this, and the position of, you know, 18 various groups were this. 19 It was less clear what the position of 20 ONAS was, because although we had a lot of ONAS employees 21 there, I mean, I was Chairing the meeting and we had a 22 co-ordinating role within government, so we were trying 23 to bring things together and it was not so clear what our 24 voice was or who had the ultimate sort of decision-making 25 authority.
2851 So, that was clearly an issue that I 2 recall identifying as a problem and that is reflected in 3 this note. 4 And also the size of the meeting, the -- 5 just that it was very difficult to manage that large, 6 unwieldy group of people. 7 So, I remember that. In terms of the one 8 that I think you're focussing on, the separating 9 political staff from public servants, I can't recall if I 10 suggested that or if that came from other people, because 11 there are a number of reasons why that might have been a 12 suggestion. 13 I mean, as I said, there was the issue 14 that it created, in this situation, conflicting views and 15 so it was very difficult for me to manage and bring 16 consensus to the -- to the meeting. 17 But there would also be the concern, I 18 would think Larry or any of the deputies would have, that 19 this was quite a departure from normal processes. 20 And then there would be issues that 21 probably would have arisen after the incident had 22 occurred, which is just that the fact that there were 23 political staff involved could be then perceived as 24 political staff having inappropriate influence on civil 25 servants.
2861 So, there were many different possible 2 reasons for that recommendation coming into being, so I 3 can't say if it was my suggestion or, you know, Larry's 4 or Yan's or other peoples. 5 Q: Okay. That's helpful. You mentioned 6 unclarity with respect to the role of ONAS and you as 7 Chair vis-a-vis other participants -- 8 A: Yes. 9 Q: -- at -- at the Blockades Committee 10 in terms of who is making decisions? 11 A: Right. 12 Q: That was one (1) of the things that 13 you mentioned? 14 A: Yes. 15 Q: And it was the conduct of -- of 16 political staff that gave rise to concern in that regard, 17 correct? 18 A: Well, it -- the -- I guess when 19 you're -- when you -- when you're in a group of people 20 and everyone agrees, it's much easier to overlook any 21 problems in the process or structure because the -- the 22 problem doesn't come to light. 23 In this meeting it was the first situation 24 where I had been at an Interministerial Committee meeting 25 where there was not consensus. And as a result that
2871 highlighted the fact that there was a lack of clarity as 2 to how decisions were made or who was responsible for 3 various things. 4 Q: You weren't sure that you were making 5 the decisions anymore? There may have been others -- 6 A: Well, previously the decisions had 7 been made by consensus, whereas at this meeting I had to 8 really work hard to try to pull together a consensus, or 9 at least what looked like a consensus on the surface. 10 And that meant rather than ONAS, sort of, 11 expect -- being a proponent of a particular viewpoint I 12 had to work much harder in -- as a Chair to work on 13 consensus building rather than presenting a particular 14 viewpoint. 15 Q: And you were pulled -- instead of 16 ONAS' normal viewpoint you were pulled in another 17 direction towards another viewpoint, correct? 18 A: I was pulled towards trying to find a 19 bit of a middle ground that would be acceptable to the 20 differing viewpoints that were expressed around the 21 table. 22 Q: And you do that as -- as Chair of an 23 advisory committee because you want to remain relevant to 24 the people who are making the ultimate decisions? 25 A: Yes.
2881 Q: And that's what we were discussing 2 earlier in a very clumsy way. 3 A: Yes. 4 Q: There's a tendency on a person in -- 5 in that type of position that they don't want to make 6 their advice totally irrelevant -- 7 A: No. 8 Q: -- so they have to come towards and 9 meet the person -- 10 A: Yes. 11 Q: -- who's going to be making the 12 ultimate decision, correct? 13 A: Yes. 14 Q: A little better, Mr. Commissioner? 15 Is that a little bit better? 16 COMMISSIONER SIDNEY LINDEN: Well, I 17 think you made your point in a roundabout way. 18 MR. JULIAN ROY: Very roundabout, but got 19 there ultimately. 20 21 (BRIEF PAUSE) 22 23 CONTINUED BY MR. JULIAN ROY: 24 Q: Now, I want to take you backwards to 25 the memo where -- where you have the issues and -- and
2891 suggestions identified? 2 A: Yes. 3 Q: And there's one, it's about the 4 fourth point down: 5 "Need to obtain timely political 6 direction for some actions, but need to 7 keep police operational decisions free 8 from political interference." 9 Do you see that? 10 A: This is on page 2 -- 11 Q: Yes. 12 A: -- of the first note, dated October 13 24th towards the bottom of the page. 14 Q: It is. 15 A: Yes. 16 Q: I -- I'm sorry, I didn't do as good a 17 job of identifying it, but yes, you're exactly right. 18 There's the cover page -- 19 A: Yes. 20 Q: -- the routing slip? 21 A: Yes, I think we're there now. 22 Q: First page of the memo and then we're 23 onto the second page of the memo. And -- 24 A: Yes. 25 Q: -- one (1) of the areas that you've
2901 identified as there being -- as it being clear that 2 there's room for improvement is this issue of need to 3 obtain timely political direction for some actions; the 4 need to keep police operational decisions free from 5 political interference. 6 Do you see that? 7 A: Yes. 8 Q: And that was an issue that you 9 identified, correct? 10 A: I'm sure a number of people 11 identified it. 12 Q: Okay. Do you know who else 13 identified it? 14 A: Well, I think there would have been - 15 - that in pulling together this note it -- I had talked 16 to other people on the Committee. I talked to people 17 within ONAS and we had looked at the evaluation that had 18 been conducted by the Solicitor General. 19 So, there were a number of source 20 materials for this note, it wasn't just my ideas. 21 Q: Okay. And the -- the evaluation from 22 the Solicitor General, can you tell me what that was? 23 A: Well, it says in this note that that 24 evaluation focussed on communications, objectives, and 25 media coverage so it was not that comprehensive an
2911 evaluation -- 2 Q: I see. 3 A: -- but it was one (1) of the inputs 4 that I received. 5 Q: Okay. And this -- but this issue 6 with respect to the need to keep police operational 7 decisions free from political interference -- 8 A: I think it's something that almost 9 all public servants would have agreed on. So, as I said, 10 I -- I probably wrote these words but that there would 11 have been many people who would have supported that or 12 come forward with that. 13 Q: Do you recall anybody from -- from 14 the police end that you consulted with in identifying 15 this need? 16 A: I'm sure that I was still talking to 17 Ron Fox on an ongoing basis. So, he would have had input 18 into -- or my -- the backdrop of my discussions with him 19 would have been one of the inputs I received in preparing 20 this. 21 Q: And this -- this -- this desire to 22 keep police operational decisions free from political 23 interference is something that you felt, based on your 24 consultation with others, that needed to be improved in 25 light of how things were conducted with the Ipperwash
2921 incident, correct? 2 A: I guess I identified it as an issue. 3 Q: That it was clear that there is room 4 for improvement, correct? 5 A: Yes. 6 Q: And can you be more precise about 7 what it was that led you to identify this need? 8 A: Well, I guess one of the things would 9 have been simply the lack of clarity around two (2) or -- 10 two (2) or three (3) issues that came up at the 11 Interministerial Committee meetings. Like, one was, you 12 know, the -- that Deb Hutton had originally thought that 13 the Government might have an ability to direct the police 14 to do certain things. 15 So, that was one example. But, just there 16 was a lack of clarity around the table. 17 COMMISSIONER SIDNEY LINDEN: Just a 18 minute, Ms. Jai, I think there's an objection to the 19 question. 20 MS. ANNA PERSCHY: Yes, Commissioner, I 21 have a concern about this Witness speaking as to the 22 thoughts of Ms. Hutton. And would ask that there be a 23 reminder to this Witness that she can speak, obviously, 24 as to her own what she saw, what she heard at various 25 meetings.
2931 But, we do -- we've covered extensively 2 her notes and her recollections of what was said at these 3 meetings and I just think that needs -- that just needs 4 to be referred to again if we're going to have these 5 sorts of comments made. 6 COMMISSIONER SIDNEY LINDEN: Well, I'm 7 not sure what you were -- Ms. Perschy, I'm not sure what 8 you're reacting to. She said, Deb Hutton -- 9 MS. ANNA PERSCHY: She referred -- she 10 referred to what she perceived as -- as to what were Ms. 11 Hutton's thoughts. 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MS. ANNA PERSCHY: And she can only 14 speak, obviously, as to her own perceptions. 15 COMMISSIONER SIDNEY LINDEN: What she 16 said, yes. 17 MS. ANNA PERSCHY: And we're going to 18 hear from Ms. Hutton on that very issue and, well, I'll - 19 - I'll leave it at that. 20 COMMISSIONER SIDNEY LINDEN: Yes, all 21 right. We want to be precise, Ms. Jai, when you're 22 referring to what other people say, that's one thing -- 23 THE WITNESS: Yes. 24 COMMISSIONER SIDNEY LINDEN: -- or to 25 your understanding of what they're saying.
2941 THE WITNESS: Yes. 2 COMMISSIONER SIDNEY LINDEN: But, when 3 you say what other people think then it may or may not be 4 exactly what they think. 5 THE WITNESS: Right. I guess -- 6 COMMISSIONER SIDNEY LINDEN: You 7 understand that? 8 THE WITNESS: -- if I can just rephrase 9 it, just that from the Interministerial Committee 10 meetings and the amount of discussion that we had had 11 about the fact that one cannot direct police actions, it 12 was clear that not everybody around the table had the 13 same understanding at the beginning of the meeting that 14 it was inappropriate for government to direct police 15 operations. 16 So, that was, I guess, one example of a 17 reason why this would be something that needed to be 18 reinforced. And then the second incident that had 19 happened was just the discussion that Ron Fox and I had 20 about whether to have the OPP connected by phone and what 21 the risks of that would be because it could overly 22 influence them. 23 And that we had decided that that was not 24 appropriate. But it was, kind of, a grey area because it 25 wasn't as if we had some guideline that they could --
2951 that they shouldn't be connected and they had been 2 connected in previous meetings. 3 So, again, that was an area where there 4 was lack of clarity and, therefore, potentially some room 5 for improvement. 6 7 CONTINUED BY MR. JULIAN ROY: 8 Q: Okay. And what I want to direct you 9 to is the suggestion that's made in respect of that 10 issue. There's a suggestion that: 11 "Meetings, including by teleconference 12 of lead ministers and staff at critical 13 decision points." 14 You see that? 15 A: Yes. 16 Q: So, what's being referred to is 17 basically cabinet level meetings, correct? 18 A: Yes. 19 Q: And then if you go towards the 20 bottom, I'm going to skip -- you can go ahead and read 21 it, but in terms of the record, I'm going to skip the 22 next three (3) lines. 23 It says: 24 "Do not involve the police in these 25 meetings."
2961 Do you see that? 2 A: Yes. 3 Q: And these meetings refers to meetings 4 of Cabinet? 5 A: Well there's also a reference to 6 meetings of deputy ministers, so that just the meetings - 7 - whichever of these meetings are occurring, whether it's 8 ministers or deputies who are making the actual 9 decisions, the police should not be involved in those 10 meetings. 11 Q: Okay. And that was a suggestion that 12 you came up with based on consultation with who? 13 A: Well, as I said, I can't remember who 14 I spoke to but I spoke to a great number of people in 15 pulling together this document including Ron Fox, but 16 others as well, I'm sure. 17 Q: But in any event, you directed your 18 mind to the propriety of police being in attendance at 19 meetings -- 20 A: Yes. 21 Q: -- of ministers and Cabinet, correct? 22 A: Yes. 23 Q: And it was your suggestion that that 24 be -- that was inappropriate, correct? 25 A: Yes.
2971 Q: If you could turn to Tab 125, which 2 is P-703. 3 4 (BRIEF PAUSE) 5 6 A: Yes. These are the slides, "Proposed 7 Procedures for Aboriginal Emergencies," dated November 8 27th, 1995? 9 Q: Yes. Now, there's also a P-708, Mr. 10 Commissioner, which is a revised version of the same 11 document as I understand it, which is a loose document, 12 it's not in the binder. 13 COMMISSIONER SIDNEY LINDEN: All right. 14 But the document you originally referred to is P-124, did 15 you say? 16 MR. JULIAN ROY: It's 125. 17 COMMISSIONER SIDNEY LINDEN: 125, okay. 18 MR. JULIAN ROY: And it's P-703. 19 COMMISSIONER SIDNEY LINDEN: 703, all 20 right. 21 MR. JULIAN ROY: That's the one I want to 22 focus on, but I wanted to alert you to the fact that 23 there's a revised -- 24 COMMISSIONER SIDNEY LINDEN: Yes. 25 MR. JULIAN ROY: -- version which is
2981 quite similar, very similar, that's P-708. 2 COMMISSIONER SIDNEY LINDEN: It's dated 3 later, I think. 4 MR. JULIAN ROY: Yes. 5 THE WITNESS: Yes. I recall discussing P 6 -- this one that I think is dated February -- 7 COMMISSIONER SIDNEY LINDEN: Yes. 8 MR. JULIAN ROY: Yes. 9 THE WITNESS: -- of 1996, but I don't 10 actually have that one in front of me. 11 COMMISSIONER SIDNEY LINDEN: I've got a 12 copy. This is dated -- the Exhibit number of that is 13 708. 14 MR. DERRY MILLAR: Perhaps we could give 15 the Witness the exhibit. 16 COMMISSIONER SIDNEY LINDEN: We've got 17 the exhibit. I had an extra copy of it. 18 19 (BRIEF PAUSE) 20 21 THE WITNESS: Thank you. 22 23 (BRIEF PAUSE) 24 25 THE WITNESS: Yes, now I have both of
2991 these -- both versions of the document in front of me. 2 3 CONTINUED BY MR. JULIAN ROY: 4 Q: Yes, I'm not going to be asking for 5 any kind of comparative. 6 A: Okay. 7 Q: I think we can focus on -- on P-703. 8 A: Yes. 9 Q: Because the cover page of that 10 reflects that this document came from you; is that 11 correct? 12 A: Yes. 13 Q: And the subject matter is revised 14 procedures for Aboriginal emergencies? 15 A: Yes. 16 Q: And I'm right in saying that -- that, 17 given that it's dated November 27th, 1995 we're some 18 distance from the events and there's more time for -- for 19 reflection in terms of improvements that could have been 20 made to the process, correct? 21 A: Yes. 22 23 (BRIEF PAUSE) 24 25 Q: And this document doesn't relate
3001 specifically to the Ipperwash incident, but am I right in 2 saying that the Ipperwash incident was really fresh in 3 everybody's mind as you were preparing this document? 4 A: Yes. 5 COMMISSIONER SIDNEY LINDEN: Mr. Roy, 6 this is a draft and it's a proposed guideline -- 7 MR. JULIAN ROY: Yes. 8 COMMISSIONER SIDNEY LINDEN: -- I just 9 want to make sure you're -- 10 MR. JULIAN ROY: Yes. 11 COMMISSIONER SIDNEY LINDEN: That's fine. 12 13 CONTINUED BY MR. JULIAN ROY: 14 Q: Now, if you go to page 4 of that 15 document. 16 A: Yes. 17 Q: There are a number of areas that are 18 identified as areas for improvement; do you see that? 19 A: Yes. 20 Q: And second among the areas of 21 improvement is membership and role of Interministerial 22 Officials Committee for Aboriginal emergencies -- 23 A: Yes. 24 Q: -- do you see that? Now, if we turn 25 to page 6 of the document.
3011 A: Yes. 2 Q: If you'll look at the top there's 3 some handwritten notations on this; do you see that? 4 A: Yes. 5 Q: Are those your handwritten notations? 6 A: No. No, they're not. 7 Q: Okay. But if we look at your -- the 8 first typed bullet point there -- 9 A: Yes. 10 Q: "Committee to be chaired by Secretary 11 of ONAS or her designate and consist of 12 public servants and political staff who 13 have direct access to deputies." 14 You see that? 15 A: Yes. 16 Q: Now, between the time of -- if you 17 recall when we were looking at Exhibit P-702, dated 18 October 24th, '95 we had the suggestion that political 19 staff be removed from the Committee? 20 A: Yes. 21 Q: And in November 1995 we have 22 political staff coming back onto the Committee -- 23 A: Yes. 24 Q: -- in terms of what your 25 recommendation is; can you tell me what the basis was for
3021 that change back to the original position? 2 A: I can't. I don't -- I don't know. I 3 know that this was a period where there was a lot of 4 instruction coming to myself and others at ONAS to 5 prepare various briefing documents and briefing notes and 6 slides and of -- and that there were numerous versions of 7 things, some of which didn't get used in the end and some 8 of which did. 9 And that I was responding to a wide 10 variety of requests at the time. So, I can't -- I don't 11 recall why the -- I mean it does seem like the thinking 12 was, sort of, flip flopping on this and I don't have an 13 explanation for that. 14 Q: Yes, that's what I wanted to ask you 15 about. But if you look at -- at -- I promised I wasn't 16 going to ask you to flip back and forth, but just on this 17 one point. 18 A: Yes. 19 Q: In -- on P-708 -- 20 A: Yes, I've been flipping myself -- 21 Q: -- on page 6. 22 A: -- as we've been talking anyways. 23 Q: Okay. And that reflects the fact 24 that -- or reflects your suggestion that public servants 25 and political staff both sit on the Committee, correct?
3031 A: Well, it wasn't my suggestion. But 2 the -- yeah, the February draft says: 3 "The ad hoc committee to be chaired by 4 the secretary of ONAS or her delegate 5 and consist of public servants and 6 political staff who have direct access 7 to deputies and ministers." 8 Q: Did you say that this wasn't your 9 suggestion? 10 A: Well, you had worded the question in 11 a way that suggested it was my suggestion that political 12 staff be put back on the Committee. And that was not my 13 -- my suggestion; that is what is in this particular 14 draft document. 15 Q: Which you drafted? 16 A: Well, drafted on instructions. And 17 this was just a proposal which we don't know if it ever 18 was adopted. 19 Q: And I'm not being critical -- 20 A: No. 21 Q: -- but I understand that -- that you 22 had drafted it -- 23 A: And it was -- 24 Q: -- as being your recommendations? 25 A: No.
3041 Q: Okay. 2 A: I mean, I drafted it with advice and 3 input from a variety of people. And, for example, on the 4 November 27th draft there's a whole bunch of handwritten 5 comments and I don't know who those comments are. 6 But that just shows that all of these -- 7 all of these drafts are what we would call in the policy 8 world or government world an iterative process; that 9 there are many iterations that different people get to 10 see them, get to write in what their comments are, 11 suggest that you make changes. 12 And then you make the changes and you take 13 it on to the next level for approval or recommendation. 14 So, I can't say that this was -- that these were my 15 suggestions. 16 Q: Okay. And you can't identify the 17 source of the suggestion? 18 A: I don't recognize that handwriting 19 although -- 20 Q: Let me -- that wasn't the question I 21 was -- 22 A: Oh. 23 Q: -- going to ask. I'll just -- the 24 question I was going to ask was -- was you can't identify 25 the source for this suggestion for the political staff to
3051 get back on this committee? 2 A: I -- no, I can't recall. 3 4 (BRIEF PAUSE) 5 6 Q: If you go to page 8 of 702? 7 A: 703? 8 Q: Sorry, 703? 9 A: Yes. 10 Q: The original suggestion is for -- in 11 terms of the role of deputy ministers is to: 12 "Liaise with political staff." 13 Do you see that? 14 A: Where are you looking on page 8? 15 Q: The third bullet point. 16 A: Oh, I see: 17 "Role of deputy ministers." 18 Yes. 19 "Liaise with political staff." 20 Q: Yes. 21 A: Right. 22 Q: And that's -- that's redundant when 23 one considers the recommendation that political staff be 24 on that committee, correct? 25 A: Right, right. And that's what the
3061 handwritten comment says there. Whoever -- who was ever 2 writing this says -- it says: 3 "What does this mean? Political staff are 4 involved in the process, since they would 5 be on the Committee under this particular 6 proposal." 7 Q: And that doesn't shed any light on -- 8 on -- on the process where -- whereby the political staff 9 get back on the Committee? 10 A: No, I'm afraid not. 11 Q: Okay. Now, if you go to page 7 of 12 the same document. Well, before I go there I want to ask 13 you -- I want to raise with you something that you said 14 very recently before I started asking you questions. 15 And that was that the Blockades Committee 16 was working fine under the previous government in the 17 sense that there was consensus around issues and there 18 wasn't the type of tension or conflict that you've 19 described in your evidence; is that right? 20 A: Yes. 21 Q: Now, do you agree with me that in 22 terms of -- of how we structure the way civil service 23 works, the civil service works, isn't it important for -- 24 to have the type of safeguards or structures in place 25 that it wouldn't matter who's the Government of the day
3071 in terms of how well those structures function? 2 A: Yes, ideally a structure would work 3 in any government situation. 4 Q: Yes. So, given that, would you agree 5 with me the fact that it used to work under an NDP 6 government, that's not an argument in favour of having 7 political staff on a committee like that? 8 A: I agree. 9 Q: Now, Mr. Rosenthal -- given that 10 evidence that you've just given I -- I believe Mr. 11 Rosenthal suggested to you a possible recommendation that 12 political staff not sit on a committee like that? Does - 13 - and your -- your evidence was that it's -- sometimes it 14 works? 15 Given your last answer are you prepared to 16 revisit that -- your evidence on that proposed 17 recommendation? 18 A: Well, I'm prepared to consider the 19 question. I actually can't recall what Mr. Rosenthal's 20 question was on that and -- but if your question now is 21 what is my recommendation with respect to whether 22 political staff should be on this type of committee -- 23 Q: Yes. 24 A: -- I think I -- my answer would be 25 similar to what I said earlier which would be that if
3081 they were on the Committee it would have to be very clear 2 what their role was so that if their role was simply to 3 be observers and communicate information back, that that 4 could be helpful in terms of speedy communications. 5 But, I certainly understand the risks of 6 having political staff on such a committee where roles 7 are not well understood. 8 Q: Okay. If we could go to page -- 9 thank you for that -- if we could go to page 7, the same 10 exhibit and the heading is -- is, "Clarify the Role of 11 the OPP;" do you see that? 12 A: Yes. 13 Q: And back on page 4 that was -- 14 Clarify the Role of the OPP -- was identified as an area 15 for -- that needed improvement; do you see that? 16 A: Yes. 17 Q: The last bullet point on that page? 18 A: Yes, it says: 19 "OPP operational decisions are made by 20 the OPP, not by the Committee." 21 Q: And that was something that was 22 identified as a need to clarify as a result of the 23 Ipperwash experience? 24 A: Well, that had always been clear that 25 was in the original guidelines for the Committee as well,
3091 but I guess there just this feeling that it was a very 2 important point that had to be reinforced. 3 Q: And I understand it was ten (10) 4 years ago but I have to ask, do you have any recollection 5 of the source of that -- that concern being identified as 6 being needed to be put in a document like this? 7 A: Well, I have no particular -- no 8 recollection of any particular thing. It was a concern - 9 - a gen -- a generally felt concern by a number of 10 people, I think. 11 Q: Right. If we could turn to page 11. 12 13 (BRIEF PAUSE) 14 15 A: That's potential legal action? 16 Q: Yes, as another area of improvement 17 that's been identified? 18 A: Yes. 19 Q: And you'll see if you look at the -- 20 the top two (2) bullet points. 21 A: Yes. 22 Q: The first one states: 23 "That the OPP in consultation with 24 Crown Attorneys is appropriate to make 25 decisions and take action re. potential
3101 criminal charges." 2 Do you see that? 3 A: Yes. 4 Q: So, this -- this bullet point clearly 5 assigns the sole responsibility for criminal charges to 6 the OPP in consultation with the Crown Attorneys, 7 correct? 8 A: Yes. 9 Q: And then there's a separate bullet 10 point about what the responsibilities are with respect to 11 the Committee as it pertains to legal action; do you see 12 that? 13 A: Yes. 14 Q: And the Committee is given 15 responsibility for injunctions and provincial offences 16 Act charges; do you see that? 17 A: Yes. 18 Q: And am I right in saying that what it 19 suggests to you is that there's a need for improvement or 20 clarification, is that the blockades committee is to have 21 no role whatsoever in decisions on criminal charges? 22 A: Yes. 23 Q: And that's something that as a result 24 of the Ipperwash experience that needed to be clarified, 25 correct?
3111 A: Yes. 2 3 (BRIEF PAUSE) 4 5 Q: I want to raise a last point on this 6 document before -- 7 A: Yes. 8 Q: -- we move onto another area, and 9 that is timely political direction -- 10 A: Yes, that's the next page, page 12. 11 Q: -- on page 12. 12 Q: Yeah. And this is similar to the 13 point that was made in the earlier document -- 14 A: Yes. 15 Q: -- meetings, including by 16 teleconference of key ministers and staff of critical 17 decision points; do you see that? 18 A: Yes. 19 Q: So, that's, in essence, cabinet level 20 meetings, correct? 21 A: Sorry? 22 Q: Cabinet level meetings? 23 A: Yes. 24 Q: And if you look at the bottom -- 25 A: Yes.
3121 Q: Police not to be involved in these 2 meetings. Do you see that? 3 A: Yes. 4 Q: And that was another area that was 5 identified as -- as an area that needed improvement, 6 correct? 7 A: Yes. 8 Q: And you don't know the source of -- 9 or do you know the source of -- of that suggestion? 10 A: No, I can't recall. I mean this 11 whole document was written in a way well, like, while it 12 says that these are all improvements, these are things 13 that have to be clarified. 14 It doesn't mean that we weren't doing some 15 of these things already. It's not like every single 16 thing that is in here is different from the way it was 17 before. 18 It's just when you're asked to prepare a 19 document setting out how a Committee should work and, you 20 know, what are the important considerations and 21 safeguards and roles, and how can it be improved. 22 So, all of that is kind of rolled up into 23 this document. 24 Q: Well -- 25 A: So, it's important to realize that
3131 some of these things are simply a reflection of the 2 status quo or you can look back into the -- at the 3 original briefing note where there are guidelines for the 4 operation of the blockades committee and some of these 5 same points are in that note. 6 Q: Yes, and you -- I thought of making a 7 comparison between the two (2) but the documents speak 8 for themselves -- 9 A: Yes, the documents speak for 10 themselves. 11 Q: Yes. I want to take you to Tab 43 of 12 the Commission documents. 13 COMMISSIONER SIDNEY LINDEN: Mr. Roy, can 14 I ask you how much longer you think you might be. It's 15 approaching 4:30, I just want to get an idea if we should 16 continue until you finish, if we can, depending on -- 17 MR. JULIAN ROY: I think we're reasonably 18 close in a sense; under an hour for sure. 19 COMMISSIONER SIDNEY LINDEN: I don't 20 think Ms. Jai would -- 21 MR. JULIAN ROY: Probably half an hour or 22 forty (40) minutes. 23 THE WITNESS: Well, half an hour would be 24 good. 25 COMMISSIONER SIDNEY LINDEN: Half an hour
3141 is reasonable? You could finish in the morning. I mean 2 we still have to deal with you, but I'd like to finish 3 with Mr. Roy if that's possible, before the end of the 4 day; if it's possible. 5 Do you need another five (5) minute break? 6 THE WITNESS: No, let's keep going. 7 MR. JULIAN ROY: I'm prepared to have 8 however many breaks and to keep going however long to 9 accommodate this Witness and -- 10 COMMISSIONER SIDNEY LINDEN: No, but I -- 11 you've indicated that you would -- you might be finished 12 by 4:30. I know we've had some interruptions so I'm just 13 asking you -- 14 MR. JULIAN ROY: Sure. 15 COMMISSIONER SIDNEY LINDEN: -- how much 16 longer? 17 You say you might be able to be finished 18 within a half hour, but possibly a little longer, but Ms. 19 Jai says she can go another half hour let's see. I don't 20 want to push her for a half hour and then find out we 21 still have a ways to go at that point -- 22 MR. JULIAN ROY: Yes. 23 COMMISSIONER SIDNEY LINDEN: -- and then 24 have to adjourn then. 25 So, if we're going to adjourn better to do
3151 it now or to try to finish. I'm asking you, is there a 2 prospect of finishing in a half hour? 3 MR. JULIAN ROY: There is a prospect of 4 finishing. And in those circumstances it would be my 5 preference to keep on going because -- 6 COMMISSIONER SIDNEY LINDEN: It's all of 7 our preference. 8 THE WITNESS: Yes. 9 MR. JULIAN ROY: If the past is any 10 predictor of the future, Ms. Twohig's not going to have a 11 thousand (1,000) questions and we may be able to finish 12 this Witness entirely today. 13 COMMISSIONER SIDNEY LINDEN: Well, we'll 14 see. But if we finish you then we'll see where we are. 15 MR. JULIAN ROY: I'm sure that would be-- 16 COMMISSIONER SIDNEY LINDEN: Carry on. 17 MR. JULIAN ROY: Everybody would be happy 18 about that. 19 COMMISSIONER SIDNEY LINDEN: Yes, I think 20 so. Carry on. 21 22 CONTINUED BY MR. JULIAN ROY: 23 Q: Tab 43? 24 A: Yes. That's some material dated 25 September 7th, 1995 from the InterMinisterial group;
3161 that's Exhibit P-659, Inquiry document 1011845; is that 2 correct? 3 Q: You're -- you're making my job easy. 4 Thank you. 5 This is a -- am I right in saying this is 6 basically a briefing for this newly-constructed nerve 7 centre of deputy ministers, correct? 8 A: Yes. 9 Q: And the date of September 7th is 10 significant because it's the day after the shooting, 11 correct? 12 A: Yes. 13 Q: And we've already discussed how 14 there's a million things happening all at once, correct? 15 A: Yes. 16 Q: And you were very, very busy in terms 17 of all the responsibilities that you're carrying, 18 correct? 19 A: Yes. 20 Q: And if we go, I believe it's eight 21 (8) or nine (9) pages into the document there -- there's 22 a document within the tab called "managing Aboriginal 23 relations with respect to Ipperwash Provincial Park 24 occupation" -- 25 A: Yes.
3171 Q: -- dated September 7th, 1995; you see 2 that? 3 A: Yes, I do. 4 Q: Okay. Now, if you look at, after the 5 cover page -- 6 A: Yes. 7 Q: -- if you go to the second page of 8 the body of the memo? 9 A: That has "issue, background and 10 concerns"? 11 Q: If you go to the next page after 12 that? 13 A: Okay. 14 Q: There's a heading "options"; do you 15 see that? 16 A: Yes. 17 Q: And "options" is, sort of, a term of 18 art in the civil service profession; is it not? 19 A: I think it has the same meaning that 20 it has in the general language. 21 Q: Okay. I understood differently from 22 Scott Hutchinson's evidence. 23 But in any event, am I right in saying 24 that -- that the heading "options" is consistent with the 25 notion that the professional civil service presents --
3181 gathers information and presents various options to the - 2 - to deputy minister and then those -- ultimately those 3 options are filtered and presented to political decision 4 makers; is that correct? 5 A: Yes. 6 Q: Now, I'm right, you were involved in 7 the preparation of these options? 8 A: Yes. 9 Q: And I'm right in saying you didn't 10 have a lot of time in terms of -- 11 A: Yes, that's correct. 12 Q: -- a lot of time to reflect and draft 13 these options as they're presented? 14 A: Correct. 15 Q: Now, the -- the way the options are 16 set out one (1) through six (6); as I read them they're - 17 - the way they're structured is that there is -- the 18 option is laid out with the pros and cons underlying each 19 option, is that correct? 20 A: Yes, the implications of each option 21 are set out. 22 Q: And that's fairly typical of how a 23 briefing like this would be prepared? 24 A: Yes. 25 Q: Now, Option 1 is:
3191 "No Aboriginal leadership involvement." 2 You see that? 3 A: Yes. 4 Q: And then the advantages and 5 disadvantages -- or rather the implications are set out 6 below, correct? 7 A: Yes. 8 Q: And the first implication of that is: 9 "will be seen by the public as a law 10 and order issue and not as an 11 Aboriginal issue." 12 Do you see that? 13 A: Yes. 14 Q: And that's on the pro side in terms 15 of pro and con? 16 A: From this government's perspective, 17 that was a pro. 18 Q: Okay. And that's how it was intended 19 to be set out in this document, correct? 20 A: I think it was -- 21 Q: Given the audience that you were 22 speaking to? 23 A: I think that we didn't say which was 24 a pro or which was a con. These were simply 25 implications. So, that from a different people's
3201 perspective, something that might be viewed as a pro 2 would be viewed by others as a con. 3 But it was simply setting out what the 4 implications of proceeding in a particular way would be. 5 Q: All right, but the first point "will 6 be seen by the public as a law and order issue and not as 7 an Aboriginal issue", you'd heard discussion surrounding 8 that implication at the blockades committee? 9 A: Yes, and in fact if you look at the 10 previous page under background, I think it's set out as a 11 contextual fact, the second last bullet point under 12 background says: 13 "Although the current dispute is seen 14 by Ontario as primarily a law and order 15 issue, in the past when incidents such 16 as this have arisen, Ontario has 17 contacted the Aboriginal leadership and 18 asked for their assistance in a variety 19 of ways to arrive at a peaceful 20 settlement." 21 Q: Okay. So, it's... 22 23 (BRIEF PAUSE) 24 25 Q: Having no Aboriginal leadership
3211 involvement implies that it's a law and order issue, not 2 an Aboriginal issue, correct? 3 A: Yes. 4 Q: And the other implications are listed 5 below: 6 "Possible escalation of the local issue 7 or regional or provincial Aboriginal 8 issue, if no Aboriginal buy into 9 Ontario's law and order approach." 10 Do you see that? 11 A: Hmm hmm. 12 Q: So, in other words, what you're 13 laying out for the ultimate decision makers is while it - 14 - the issue can be portrayed as a law and order issue, 15 there's going to be some other consequences -- 16 A: Right. 17 Q: -- being possible escalation of other 18 incidents, correct? 19 A: That's correct. 20 Q: And possible escalation of other 21 incidents means possible use of force and possible 22 personal injury or death, correct? 23 A: It just means that -- that it would 24 be responded to possibly at a regional or provincial 25 level. It could be a variety of interpretations. It
3221 could be that the regional chiefs would be upset with 2 this -- 3 Q: Okay. 4 A: It doesn't have to imply violence. 5 Q: All right, well we'll -- there is 6 some further language under one of the other options that 7 we'll get to that might clarify that. 8 9 (BRIEF PAUSE) 10 11 Q: Now, am I right in saying that Option 12 1 is consistent with the basic approach that was taken 13 prior to the shooting? 14 A: You mean from September 5th and 6th? 15 Q: Yes. 16 A: Yes. 17 Q: So, Option 1, which you're 18 identifying as one of the options on a going forward 19 basis after the shooting would have been equally 20 applicable and actually was consistent with the approach 21 that was ultimately followed prior to the shooting, 22 correct? 23 A: Yes. 24 Q: And all the rest of these options, as 25 they're laid out, were things that were available prior
3231 to the shooting, correct? 2 A: Yes. 3 Q: And I'm not going to take you -- 4 everybody will be pleased to know that I'm not going to 5 take you through all the options, but I want to ask you 6 about Option 4. 7 A: Yes. That's use of an Aboriginal 8 facilitator; get an Aboriginal facilitator or Elder 9 involved to assist in the resolution. 10 Q: Okay. And the implication of that is 11 that's been used successfully in resolution of other 12 Aboriginal incidents; do you see that? 13 A: Yes. 14 Q: And the second point is: 15 "Maybe useful to assist in peaceful 16 resolution of the situation and to 17 prevent further escalation." 18 Do you see that? 19 A: Yes. 20 Q: So, in other words what you're 21 presenting at this briefing is that this option of 22 involving Aboriginal facilitators or elders improves the 23 chance of there being a peaceful or non-violent 24 resolution of the situation, correct? 25 A: Yes.
3241 Q: But if you look at the next point -- 2 A: Yes. 3 Q: "This is balanced against having an 4 Aboriginal facilitator or Elder may 5 suggest that the province sees the 6 resolution of the situation as an 7 Aboriginal issue, rather than as a law 8 and order issue", 9 Do you see that? 10 A: Yes. 11 Q: And -- now that last point is really 12 about political communications or government 13 communications, is that right? 14 A: Yes. 15 Q: A disadvantage? It doesn't relate to 16 how, on the ground, the situation is going to be dealt 17 with. It deals with how the Government is going to 18 communicate what's happening on the ground, correct? 19 A: How the issue is going to be 20 positioned or framed, yes. 21 Q: So, that disadvantage or that 22 implication that's identified doesn't really have any 23 practical impact on peacefully resolving the issue on the 24 ground, does it? 25 A: Yes, there are different orders of
3251 advantages and disadvantages. Some are practical and 2 some are more political or public communications. 3 Q: Now, the only advantage that you were 4 able to identify or only disadvantage depending on your 5 point of view -- let's -- let's be -- 6 A: Hmm hmm. 7 Q: -- realistic about your perception of 8 who you were speaking to because it's consistent with 9 your evidence throughout, the only disadvantage of this 10 option of having Aboriginal facilitators or elders is 11 that it may interfere with the ability of the -- the 12 political side to cast this issue as a law and order 13 versus an Aboriginal view? 14 A: Yes. 15 16 (BRIEF PAUSE) 17 18 Q: And balanced against that 19 disadvantage and the communication strategy of people is 20 this notion that it's the best way to actually preserve 21 life, correct? 22 A: The fact that it might work is 23 balanced against the fact that it appeared to be 24 inconsistent with the province's desire to characterize 25 this as a law and order issue rather than as an
3261 Aboriginal issue. 2 Q: Now, this -- this notion that using 3 this -- using Aboriginal facilitator or elders is 4 consistent with the go slow approach that -- that Ron Fox 5 was advocating at the Interministerial Committee? 6 A: Yes. 7 Q: It was consistent with the approach, 8 the preferred approach of ONAS, correct? 9 A: Yes. 10 Q: And you made that clear at the 11 meetings that that was your preferred approach, correct? 12 A: I believe so. 13 Q: And you didn't identify that approach 14 without identifying the implications of that approach, 15 did you? 16 A: I can't recall how this -- I mean it 17 wasn't presented exactly in the same way at the meetings. 18 Q: Okay. But in terms of the go slow 19 approach Ron Fox was making it clear to everybody that he 20 felt as an OPP officer that that was the best way to 21 ensure that -- of protecting life and resolving this 22 situation? 23 A: Yes. 24 Q: And balanced against that in terms of 25 the debate that was going on at the Committee, balanced
3271 against that was this notion of spinning this issue as a 2 non-Aboriginal event, correct? 3 A: Of treating it as a law and order 4 issue rather than an Aboriginal issue, yes. 5 Q: So, it was -- it was -- and you've 6 agreed with me that Option 1 is what's followed before 7 the event, correct? 8 A: Yes. 9 Q: So, am I right in saying that -- that 10 -- that what's given precedence prior to the shooting is 11 the need to have this issue spun as a law and order issue 12 and not as an Aboriginal issue? 13 A: Yes. 14 Q: And that's given precedence over the 15 best option to resolve the situation peacefully and 16 protect life, isn't it? 17 A: Yes. 18 Q: Now, I may be a little bit old 19 fashioned about things like this, but isn't the theory 20 behind how government works is that the decision makers, 21 based on good advice from professional civil servants, 22 decide on the best way to peacefully resolve the 23 situation and then after the right decision is made 24 people who do the spin, take what they're given and make 25 the best of it from the point of view of the --
3281 COMMISSIONER SIDNEY LINDEN: Again, I'm 2 not -- 3 MR. DERRY MILLAR: I don't think that's 4 an appropriate question. 5 COMMISSIONER SIDNEY LINDEN: Mr. 6 Millar...I'm sorry? 7 MR. DERRY MILLAR: I don't think that's 8 an appropriate question. 9 COMMISSIONER SIDNEY LINDEN: No, I don't 10 think so either. I think you've gone beyond her ability 11 to answer. 12 MR. JULIAN ROY: I'm going to beat my 13 estimate, Mr. Commissioner, of the half hour -- forty 14 (40) minutes, I'm in my last -- last few questions. 15 COMMISSIONER SIDNEY LINDEN: Thank you. 16 17 CONTINUED BY MR. JULIAN ROY: 18 Q: Now, you gave some evidence when Mr. 19 Rosenthal was asking you questions about ministers 20 wearing two (2) hats. 21 A: Yes. 22 Q: Do you remember that? 23 A: Yes. 24 Q: Now, you -- you identified a possible 25 tension when the Attorney General wears both the hat of
3291 the minister responsible for Aboriginal -- or Aboriginal 2 affairs -- I'm sorry, native affairs and wears the hat of 3 the Attorney General -- 4 A: Yes. 5 Q: -- do you remember that? 6 Am I right in saying that there's also a 7 tension when the minister responsible for native affairs 8 also wears the hat of the Minister of Natural Resources? 9 COMMISSIONER SIDNEY LINDEN: Yes, Ms. 10 Twohig? 11 MS. KIM TWOHIG: I'd like to object to 12 that question in that she can't speak to what ministers 13 feel. And if she's being asked for her opinion on 14 whether there's an inherent conflict of interest, I 15 submit that's not an appropriate question. 16 COMMISSIONER SIDNEY LINDEN: I think 17 you're right, Ms. Twohig. 18 MR. JULIAN ROY: I'm making -- I'm asking 19 the same questions that Mr. Rosenthal asked -- 20 COMMISSIONER SIDNEY LINDEN: No, when 21 Mr. -- 22 MR. JULIAN ROY: -- in connection with a 23 different ministry. 24 COMMISSIONER SIDNEY LINDEN: When Mr. 25 Rosenthal asked it, he took it down to her perception --
3301 MR. JULIAN ROY: Okay. 2 COMMISSIONER SIDNEY LINDEN: -- on the 3 ground -- 4 MR. JULIAN ROY: Sure. 5 COMMISSIONER SIDNEY LINDEN: -- not high 6 level theoretical issues. 7 MR. JULIAN ROY: Okay. I -- I understand 8 now. Thank you. That helps. I want to ask you -- 9 COMMISSIONER SIDNEY LINDEN: And she 10 didn't work in the Ministry of Natural Resources, so your 11 question about possible tension -- 12 THE WITNESS: Yes. 13 COMMISSIONER SIDNEY LINDEN: -- in that 14 ministry is a different question. Not that it's an 15 inappropriate question, but I think it's inappropriate 16 for this Witness. 17 MR. JULIAN ROY: Let me see if I can lay 18 a foundation and ask -- 19 COMMISSIONER SIDNEY LINDEN: Yes, Mr. 20 Henderson? 21 MR. WILLIAM HENDERSON: Maybe I'll just 22 have a word with Mr. Roy? 23 24 (BRIEF PAUSE) 25
3311 CONTINUED BY MR. JULIAN ROY: 2 Q: As I understood your evidence, prior 3 to the election of the Conservative government, the 4 ministry responsible for native affairs reported to the 5 minister who was also respon -- who was also the Minister 6 of Natural Resources; am I right? 7 A: Yes. 8 Q: So,you have some practical, on the 9 ground experience of dealing with a Minister of norther - 10 - I'm sorry -- 11 A: Natural Resource. 12 Q: -- Minister of Natural Resources -- 13 A: Yes. 14 Q: -- who is also wearing the hat of -- 15 A: Yes. 16 Q: -- the minister responsible for -- 17 A: Yes, in that case -- 18 Q: -- native affairs? 19 A: There were -- it was two (2) separate 20 bureaucracies under two (2) separate deputy ministers 21 with the minister wearing the two (2) hats. 22 Q: All right. Does that -- does that 23 make it easier for the minister to wear two (2) hats when 24 there's two (2) deputy ministers; from -- in your 25 experience?
3321 COMMISSIONER SIDNEY LINDEN: Again? 2 MS. KIM TWOHIG: Again, I object to her 3 being asked to comment on whether certain government 4 structures are appropriate or not or make it more 5 difficult for ministers to act. 6 COMMISSIONER SIDNEY LINDEN: I agree with 7 that. It's not that -- 8 MR. JULIAN ROY: I can -- 9 COMMISSIONER SIDNEY LINDEN: --- you're 10 asking it from her perspective, what she experienced, and 11 I think that's appropriate. 12 MR. JULIAN ROY: I can phrase it in a 13 tighter way. 14 COMMISSIONER SIDNEY LINDEN: Putting it 15 from the minister's perspective is not something she can 16 answer. 17 MR. JULIAN ROY: I can phrase it in a 18 tighter way. I just lost my focus there for a second. 19 20 CONTINUED BY MR. JULIAN ROY: 21 Q: I'm going to -- I want to ask you 22 this, as having -- as a person who has -- who's had 23 experience reporting to a cabinet minister who shares 24 responsibility for the Ministry of Natural Resources and 25 the Ministry Responsible for Native Affairs, from your
3331 perspective only as a senior civil servant; from your 2 perspective, does it give rise to a tension -- the type 3 of tension that you talked about when you were giving 4 evidence to Mr. Rosenthal about the tension between the 5 Attorney General and -- wearing another hat of the 6 Ministry of Native Affairs? 7 COMMISSIONER SIDNEY LINDEN: Did that 8 present any problems for her dealing with the Minister or 9 in the ministry? 10 MR. JULIAN ROY: Yes, that's my question. 11 COMMISSIONER SIDNEY LINDEN: From her 12 perspective, it's a legitimate question. 13 Yes, Ms. Twohig...? 14 MS. KIM TWOHIG: In my submission, her 15 personal opinion about that is irrelevant. And I -- I 16 submit that this whole line of questioning of this 17 Witness is inappropriate and irrelevant. 18 COMMISSIONER SIDNEY LINDEN: Thank you. 19 I think her experience is relevant and I think it's a 20 legitimate question. We allowed Mr. Rosenthal to ask it 21 in that context and I think it's a legitimate question? 22 23 CONTINUED BY MS. JULIAN ROY: 24 Q: All right, do you understand the 25 question?
3341 A: Yes. In my experience, when the 2 minister -- there was one minister who had both 3 portfolios, Natural Resources and Native Affairs 4 Secretariat but there were two (2) separate deputy 5 ministers, my experience was that I could brief the 6 deputy minister responsible for Native Affairs and that I 7 had very good access to that person and he had good 8 access to his minister. 9 Therefore, it was quite clear what the 10 perspective of the Native Affairs Secretariat was, and 11 that was being clearly presented to the Minister. 12 The Minister would then have to deal with 13 the issue of how he juggled the two (2) hats. 14 COMMISSIONER SIDNEY LINDEN: That's fine. 15 MR. JULIAN ROY: But from -- I want to 16 ask one follow up question to that, Mr. Commissioner. I 17 know you'd prefer that I just keep -- 18 COMMISSIONER SIDNEY LINDEN: No, it 19 depends on what the question is. 20 MR. JULIAN ROY: All right. 21 22 CONTINUED BY MR. JULIAN ROY: 23 Q: What I want to ask you is from -- 24 from your perspective did -- did you become concerned 25 about a tension potentially in the sense that the
3351 Ministry of Natural Resources has stewardship or 2 responsibility for the -- often for the land that has 3 been claimed in a land claim process that's being dealt 4 with by the Ministry responsible for Native Affairs? 5 From your perspective, did you identify 6 that as a tension? 7 A: Yes, I was aware of that as a tension 8 and I believe that it was well known that there were 9 potentially conflicting interests between the Natural 10 Resources portfolio and the Native Affairs portfolio and 11 that one (1) of the objectives of the previous government 12 in having those -- both portfolios in the one (1) 13 minister was to try to reconcile those conflicting or 14 competing interests. 15 Q: So, it was a deliberate -- it was -- 16 A: That was my understanding at the 17 time. 18 Q: All right. 19 20 (BRIEF PAUSE) 21 22 MR. JULIAN ROY: I'm just checking some 23 of my notes, Mr. Commissioner. We don't need a break. 24 We don't need a break despite the fact that I'm pausing. 25 COMMISSIONER SIDNEY LINDEN: Well, that's
3361 fine. If you're finished then let us know. 2 3 (BRIEF PAUSE) 4 5 CONTINUED BY MR. JULIAN ROY: 6 Q: Now, you talked about when Mr. 7 Rosenthal was asking you questions about the AG wearing 8 the two (2) hats? 9 A: Yes. 10 Q: And your evidence was that it was a 11 manageable situation as long as the person who's wearing 12 the two (2) hats clearly appreciates at all points that 13 he's wearing two (2) hats -- 14 A: Yes. 15 Q: -- and he's alert for those types of 16 conflicts? 17 A: Yes. 18 Q: If you could turn to Tab 26 of the 19 Commission documents? 20 21 (BRIEF PAUSE) 22 23 COMMISSIONER SIDNEY LINDEN: I think the 24 only thing that's relevant here, Mr. Roy, is her 25 experience with this issue, of her experience, so that's
3371 what we confined Mr. Rosenthal to -- 2 MR. JULIAN ROY: Yes. 3 COMMISSIONER SIDNEY LINDEN: -- and what 4 I'm confining you to. 5 MR. JULIAN ROY: Yes, and I'm bringing it 6 back to the facts which are her discussion with Mr. Taman 7 on the AG's client or lawyer and asking questions about 8 that. 9 COMMISSIONER SIDNEY LINDEN: Well, ask 10 your question. 11 12 CONTINUED BY MR. JULIAN ROY: 13 Q: If you look at the second version of 14 the -- of the Minister's briefing form? 15 A: This is the one without the 16 handwritten comments? You're referring to Inquiry 17 Document 1011729? 18 Q: Yes, it's -- it's Exhibit P-512? 19 A: Yes. 20 Q: Although I think it's also P-549 as 21 well, but it is Inquiry Document 1011729. 22 A: Yes, I have that in front of me. 23 MR. DERRY MILLAR: Well, it's a different 24 document. It's -- P-549 has handwriting on it, it's 25 different. This document is also part of 639.
3381 MR. JULIAN ROY: Well, I want the memo -- 2 I want the memo that doesn't have the handwriting on the 3 face, but has it on the back page. 4 THE WITNESS: Okay. 5 MR. DERRY MILLAR: That's P-512. 6 MR. JULIAN ROY: That's P-512 I'm told by 7 Mr. Millar. 8 THE WITNESS: Yes, it is. 9 COMMISSIONER SIDNEY LINDEN: Yes. 10 11 CONTINUED BY MR. JULIAN ROY: 12 Q: And these -- this handwriting are 13 your notes, correct? 14 A: Yes. 15 Q: And I'm interested in the bottom 16 part. 17 A: Yes. 18 Q: The context of the discussion we just 19 had about two (2) hats? 20 A: Right, right. 21 Q: And what you're recording here are a 22 discussion with Larry Taman, correct? 23 A: Yes. 24 Q: And one (1) of the things you record 25 Larry Taman talking about if you look on the left-hand
3391 side, the small writing in the margin? 2 A: Yes, it says: 3 "Re. Injunction. Is AG just a client 4 or do they have a separate duty to 5 uphold the -- the law?" 6 Q: Okay and what -- what Mr. Taman 7 appears to be doing is he's engaging in that type of 8 recognition of potential conflict as it pertains to two 9 (2) different roles that the Attorney General has, 10 correct? 11 A: Yes, I think so. 12 Q: And that's the good practice that 13 you're potentially talking about, correct? 14 A: Yes. 15 Q: But you don't record Mr. Taman 16 engaging that same type of analysis when it come -- comes 17 to his role as Deputy Minister responsible for the 18 Ministry of Northern or -- Native Affairs, do you? 19 A: I don't have a note of that, no. And 20 I don't have a recollection of it. 21 Q: Okay. And that's exactly -- when you 22 talk about a need to engage in that type of analysis, you 23 didn't hear Mr. Taman engage in that type of analysis 24 during this incident? 25 A: Well, not that I recall.
3401 Q: Okay. My question was, you don't 2 recall that? 3 COMMISSIONER SIDNEY LINDEN: She doesn't 4 recall. 5 MR. JULIAN ROY: I just -- there was an 6 objection -- informal objection behind, that's all. 7 MS. KIM TWOHIG: Mr. Commissioner, I -- I 8 do apologise again for interrupting, but I think it's 9 important here that -- that My Friend understand, 10 perhaps, the role of the Attorney General and Mr. 11 Hutchinson tried to explain -- 12 COMMISSIONER SIDNEY LINDEN: Yes. 13 MS. KIM TWOHIG: -- that the Attorney 14 General has several roles, but that does not necessarily 15 mean there is a conflict, and I think it's important that 16 the language used in the questions be very carefully 17 worded. 18 COMMISSIONER SIDNEY LINDEN: Thank you, 19 Ms. Twohig. I think -- are you finished with this area? 20 MR. JULIAN ROY: I have one -- thirty 21 (30) seconds of considering my notes and I may be done -- 22 COMMISSIONER SIDNEY LINDEN: That's fine, 23 go ahead. 24 MR. JULIAN ROY: I keep not speaking into 25 the mike, but I need thirty (30) seconds --
3411 COMMISSIONER SIDNEY LINDEN: Go ahead. 2 MR. JULIAN ROY: -- to look at my notes-- 3 COMMISSIONER SIDNEY LINDEN: Okay. 4 MR. JULIAN ROY: And I may be completed 5 entirely. Can I have your indulgence for one moment. 6 COMMISSIONER SIDNEY LINDEN: Sure. 7 8 (BRIEF PAUSE) 9 10 MR. JULIAN ROY: Thank you very much, Ms. 11 Jai, those are my questions. Thank you, Mr. 12 Commissioner, for your patience. 13 COMMISSIONER SIDNEY LINDEN: Thank you 14 very much, Mr. Roy. 15 Ms. Twohig, how long do you think you 16 might be? 17 MS. KIM TWOHIG: I estimate about twenty 18 (20) minutes. I could be up to half an hour. 19 COMMISSIONER SIDNEY LINDEN: Then I think 20 we should do it in the morning. I'm sorry, Ms. Jai, it 21 means you've got to stay over another night, but I think 22 you expected to stay over another night in any event, so 23 it'll be a short day tomorrow. Is that all right? Is 24 that what we should do? 25 I don't think we should go beyond --
3421 MR. DERRY MILLAR: Well, no I -- well, 2 I'm in -- we're, of course, in your hands and the 3 Witness' hands. 4 COMMISSIONER SIDNEY LINDEN: We usually 5 adjourn at 4:30. 6 MR. DERRY MILLAR: 4:30. 7 COMMISSIONER SIDNEY LINDEN: We started 8 at nine o'clock, it's been a very long, difficult day. 9 MR. DERRY MILLAR: I think it would be 10 appropriate -- 11 COMMISSIONER SIDNEY LINDEN: I think we 12 should break now and finish it tomorrow morning. 13 MR. DERRY MILLAR: Thank you, sir. I 14 might just advise My Friends I've sent around an e-mail 15 about a document that I believe was the document referred 16 to by Ms. Jai in the cross-examination of -- by Mr. Roy 17 that we're going to ask her about tomorrow, so I just 18 want to alert My Friends. 19 COMMISSIONER SIDNEY LINDEN: Okay, we 20 adjourn from now until tomorrow morning at nine o'clock, 21 thank you. 22 23 (WITNESS RETIRES) 24 25 THE REGISTRAR: This Public Inquiry is
3431 adjourned until tomorrow, Thursday September 15th at 9:00 2 a.m. 3 4 5 --- Upon adjourning at 4:55 p.m. 6 7 8 9 10 11 Certified Correct, 12 13 14 15 ___________________ 16 Dustin Warnock 17 18 19 20 21 22 23 24 25